Tos v. Jackson Heights Care Ctr., LLC

• Decision Date: 31 January 2012
• Citation: Tos v. Jackson Heights Care Ctr., LLC, 91 A.D.3d 943, 937 N.Y.S.2d 629, 2012 N.Y. Slip Op. 776 (N.Y. App. Div. 2012)
• Parties: Delia TOS, appellant, v. JACKSON HEIGHTS CARE CENTER, LLC, etc., respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00776

91 A.D.3d 943

937 N.Y.S.2d 629

Delia TOS, appellant,

v.JACKSON HEIGHTS CARE CENTER, LLC, etc., respondent.

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

Jan. 31, 2012.

Michael A. Cervini (Lisa M. Comeau, Garden City, N.Y., of counsel), for appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, N.Y. (Jensen Varghese and Timothy Coon of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Grays, J.), dated January 3, 2011, which granted the defendant's motion, in effect, pursuant to CPLR 3126 to strike the complaint, and denied her cross motion pursuant to CPLR 3126 to strike the answer.

ORDERED that the order is affirmed, with costs.

The Supreme Court did not improvidently exercise its discretion in granting the defendant's motion, in effect, pursuant to CPLR 3126 to strike the complaint ( see Kihl v. Pfeffer, 94 N.Y.2d 118, 122–123, 700 N.Y.S.2d 87, 722 N.E.2d 55). A court may strike a pleading as a sanction if a party “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” (CPLR 3126; see Moray v. City of Yonkers, 76 A.D.3d 618, 906 N.Y.S.2d 508; Mazza v. Seneca, 72 A.D.3d 754, 899 N.Y.S.2d 294; Pirro Group, LLC v. One Point St., Inc., 71 A.D.3d 654, 896 N.Y.S.2d 152). The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to respond to demands or to comply with discovery orders, and the absence of any reasonable excuse for these failures ( see Pirro Group, LLC v. One Point St., Inc., 71 A.D.3d 654, 896 N.Y.S.2d 152; Workman v. Town of Southampton, 69 A.D.3d 619, 892 N.Y.S.2d 481; Dank v. Sears Holding Mgt. Corp., 69 A.D.3d 557, 892 N.Y.S.2d 510). In the instant case, for over 21 months, the plaintiff failed to comply with two court orders, a so-ordered stipulation, and two other stipulations, whereby she had been directed by the Supreme Court to provide responses to the defendant's discovery demands or had agreed to provide the disclosure. Moreover, the plaintiff offered no excuses for her failure to provide the disclosure. Under such circumstances, the Supreme Court did not improvidently exercise its discretion in granting the defendant's motion, in effect, pursuant to CPLR 3126 to strike the complaint.

Moreover, since the plaintiff...