Wydallis v. U.S. Fidelity & Guar. Co.

• Citation: 516 N.Y.S.2d 240,131 A.D.2d 468
• Parties: Edward F. WYDALLIS, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Respondent.
• Decision Date: 01 June 1987
• Court: New York Supreme Court Appellate Division

Page 240

516 N.Y.S.2d 240

131 A.D.2d 468

Edward F. WYDALLIS, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Respondent.

Supreme Court, Appellate Division,

Second Department.

June 1, 1987.

Harold W. Grubart, New York City, for appellant.

Greenhill and Rubin, New York City (Charles T. Rubin, of counsel), for respondent.

Before BRACKEN, J.P., and RUBIN, EIBER and SPATT, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for breach of a contract of insurance, the plaintiff appeals from an order of the Supreme Court, Westchester County (Walsh, J.), entered May 22, 1985, which granted the defendant's motion to dismiss the complaint for the plaintiff's failure to answer certain interrogatories.

ORDERED that the order is reversed, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a hearing and new determination in accordance herewith.

The defendant served interrogatories upon the plaintiff who either failed to provide an answer or gave unresponsive answers to certain of them. The plaintiff further stated that he had no knowledge as to material issues raised by the defendant's interrogatories. The defendant moved to compel the plaintiff to serve more responsive answers or, in the alternative, to dismiss the complaint. The court ordered the plaintiff to serve more responsive answers to certain enumerated interrogatories. The plaintiff then served supplemental answers, and the defendant, who determined that these were unresponsive as well, moved to have the complaint dismissed. In its moving papers, the defendant asserted that the plaintiff was an officer and stockholder of the corporation claiming the insurance proceeds from an alleged theft of the corporation's property and, therefore, should have the knowledge to answer the questions. In opposition to this motion to strike the complaint, the plaintiff submitted the affirmation of his attorn and did not personally respond. The attorney's affirmation conceded that the plaintiff was an officer of the corporation and asserted that he was an assignee of the contract of insurance. He argued, however, that he was an inactive officer only and therefore did not possess the requisite knowledge. The Supreme Court dismissed the complaint after determining that the supplemental answers were unresponsive and the information requested was necessary to defend the action. The parties point out that a prior similar action brought in the Supreme Court, New York County, was dismissed because the plaintiff failed to answer interrogatories owing to a professed lack of material information (see, Wydallis v. United States Fidelity & Guar. Co., Sup Ct NY County, Feb. 15, 1985, Schwartz, J., affd. 116 A.D.2d 1048, 497 N.Y.S.2d 975).

Initially, the plaintiff's failure to move to strike the interrogatories forecloses inquiry into the propriety of the information sought (see, Kleinberg v. American Mayflower Life Ins. Co. of N.Y., 106 A.D.2d 268, 482 N.Y.S.2d 283; Medaris v. Vosburgh, 93 A.D.2d 882, 461 N.Y.S.2d 415; Leissner v. Ford Motor Co., 79 A.D.2d 700, 434 N.Y.S.2d 268). Thus, the issue is not whether the interrogatories were proper, but whether the plaintiff's answers were sufficient.

While we recognize that the Supreme Court has broad discretion in fashioning a remedy for failure to comply with discovery requests (see, Zletz v. Wetanson, 67 N.Y.2d 711, 499 N.Y.S.2d 933, 490 N.E.2d 852), the dismissal of a complaint is a harsh remedy and is proper only where the party's failure to comply can be characterized as willful and contumacious (see, e.g., Sawh v. Bridges, 120 A.D.2d 74, 507 N.Y.S.2d 632; Anteri v. NRS Constr. Corp., 117 A.D.2d 696, 498 N.Y.S.2d...