Krause v. Lobacz

• Decision Date: 23 September 2015
• Docket Number: 2014-04546, Index Nos. 17174/06, 22871/07.
• Citation: 16 N.Y.S.3d 601,131 A.D.3d 1128,2015 N.Y. Slip Op. 06892
• Parties: Paul KRAUSE, et al., plaintiffs, v. Frank M. LOBACZ, defendant. (Action No. 1) Frank M. Lobacz, et al., appellants, v. Paul Krause, et al., respondents. (Action No. 1).
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 1128

16 N.Y.S.3d 601

2015 N.Y. Slip Op. 06892

Paul KRAUSE, et al., plaintiffs

v.Frank M. LOBACZ, defendant. (Action No. 1)

Frank M. Lobacz, et al., appellants

v.Paul Krause, et al., respondents. (Action No. 1).

2014-04546, Index Nos. 17174/06, 22871/07.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 23, 2015.

Barry V. Pittman, Bay Shore, N.Y., for appellants.

Schondebare & Korcz, Ronkonkoma, N.Y. (Amy B. Korcz of counsel), for respondents.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.

Opinion

In two related actions, inter alia, to recover damages for intentional infliction of emotional distress and prima facie tort, which were joined for trial, the plaintiffs in Action No. 2 appeal from an order of the Supreme Court, Suffolk County (Spinner, J.), entered March 25, 2014, which granted that branch of the motion of the defendants in Action No. 2 which was, in effect, pursuant to CPLR 3126 to dismiss the complaint in that action for failure to comply with discovery demands.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the motion of the defendants in Action No. 2 to dismiss the complaint in that action is denied.

In August 2007, the plaintiffs in Action No. 2 commenced that action against the defendants Paul Krause, Paul Krause, Jr., Brett Krause, and Kevin Krause (hereinafter collectively the Krause defendants), to recover damages for intentional infliction of emotional distress, prima facie tort, and personal injuries. After issue was joined in that action, Action No. 2 was joined for trial with Action No. 1, an action commenced earlier by one of the Krause defendants and others against one of the plaintiffs in Action No. 2.

The Krause defendants moved to dismiss the complaint in Action No. 2 pursuant to CPLR 3216 for failure to prosecute or, in effect, pursuant to CPLR 3126 for failure to respond to discovery demands. The Supreme Court granted that branch of the motion which was, in effect, pursuant to CPLR 3126 to dismiss the complaint in Action No. 2 for the plaintiffs' failure to appear for depositions.

The nature and degree of a penalty to be imposed on a motion pursuant to CPLR 3126 is a matter generally left to the discretion of the Supreme Court (see Apladenaki v. Greenpoint Mtge. Funding, Inc., 117 A.D.3d 976, 977, 986 N.Y.S.2d 589 ; Harris v. City of New York, 117 A.D.3d 790, 790, 985 N.Y.S.2d 711 ; Fishbane v. Chelsea Hall, LLC, 65 A.D.3d 1079, 1081, 885 N.Y.S.2d 718 ). However, “[t]he striking of a party's pleading is a drastic remedy only warranted where there has been a clear showing that the failure to comply with discovery demands was willful and contumacious” (Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 A.D.3d 201, 210, 959 N.Y.S.2d 74 ; see Facey v. Silver Express Cab Corp., 87 A.D.3d 1053, 1053, 929 N.Y.S.2d 755 ; see also Patel v. DeLeon, 43 A.D.3d 432, 432–433, 840 N.Y.S.2d 632 ). Further, “[p]ublic policy strongly favors the resolution of actions on the merits whenever possible” (Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 A.D.3d at 210, 959 N.Y.S.2d 74 ).

Here, the Krause defendants, in support of their motion, simply submitted a copy of the pleadings. They did not submit any copies of demands for discovery, notices of depositions, discovery scheduling orders, correspondence demonstrating that depositions had been scheduled, or any correspondence showing a good faith effort to conduct the depositions on their part (see 22 NYCRR 202.7 ). This was insufficient to show a pattern of a willful and contumacious failure to respond to discovery demands or comply with disclosure, so as to justify the Supreme Court striking the complaint in Action No. 2 (see De Leo v. State–Whitehall Co., 126 A.D.3d 750, 5 N.Y.S.3d 277 ; Holand v. Cascino, 122 A.D.3d 575, 576, 996 N.Y.S.2d 135 ; JPMorgan Chase Bank, N.A. v. New York State Dept. of Motor Vehs., 119 A.D.3d 903, 903–904, 990 N.Y.S.2d 577 ). Although one of the plaintiffs in Action No. 2 was incarcerated commencing November 2010, there was no showing by the Krause defendants that he was unwilling to appear for a deposition. Accordingly, the Supreme Court improvidently exercised its discretion in granting that branch of the Krause defenda...