|Workman v Town of Southampton|
|2010 NY Slip Op 00142 [69 AD3d 619]|
|January 5, 2010|
|Appellate Division, Second Department|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
|David Workman, Appellant,|
Town of Southampton et al., Defendants, and Gaslight Entertainment Ltd. et al., Respondents.
Zegen & Fellenbaum, New York, N.Y. (Scott A. Koltun of counsel), for
Zegen & Fellenbaum, New York, N.Y. (Scott A. Koltun of counsel), for respondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated October 30, 2008, which, upon the plaintiff's failure to comply with a prior order of the same court dated June 5, 2008, granting the motion of the defendants Joshua B. Zegen, Michael Romer, and Gaslight Entertainment, Ltd., and the separate motion of the defendant Dennis Stuff, Inc., in effect, pursuant to CPLR 3126 to dismiss the complaint unless the plaintiff satisfied outstanding discovery demands and, after a compliance conference, granted those motions to dismiss the complaint, and (2) an order of the same court dated April 21, 2009, which denied the plaintiff's motion, among other things, in effect, to leave to reargue the motions, in effect, pursuant to CPLR 3126 to dismiss the complaint.
Ordered that the appeal from so much of the order dated April 21, 2009, as denied that branch of the plaintiff's motion which was, in effect, for leave to reargue is dismissed, as so appeal lies from an order denying reargument; and it is further,
Ordered that the order dated October 30, 2008, is affirmed; and it is further;
Ordered that the order dated April 21, 2009, is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the respondents.
"The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court" (McArthur v New York City Hous. Auth., 48 AD3d 431, 431 ; see CPLR 3126 ; Kihl v Pfeffer, 94 NY2d 118, 122-123 ; Northfield Ins. Co. v Model Towing & Recovery, 63 AD3d 808 ). The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful or contumacious (see Northfield Ins. Co. v Model Towing & Recovery, 63 AD3d 808 ; Kuzmin v Visiting Nurse Serv. of N.Y., 22 AD3d [*2]643 ; Diel v Rosenfeld, 12 AD3d 558, 559 ). The willful and contumacious conduct can be inferred by a party's repeated failure to respond to demands or to comply with discovery orders, absent a reasonable excuse (see Northfield Ins. Co. v Model Towing & Recovery, 63 AD3d 808 ; McArthur v New York City Hous. Auth., 48 AD3d 431 ; Horne v Swimquip, Inc., 36 AD3d 859 ; Sowerby v Camarda, 20 AD3d 411 ; Rowell v Joyce, 10 AD3d 601 ; Bodine v Ladjevardi, 284 AD2d 351, 352 ). In this case, the willful and contumacious character of the plaintiff's conduct can be inferred from his repeated failure to comply with court orders directing him to provide properly-executed authorizations without a reasonable excuse. Although he allegedly orally objected to having to provide the authorizations, he did not make a motion, despite the court's direction that he do so. Under these circumstances, the Supreme Court providently exercised its discretion in granting the motions to dismiss the complaint (see Horne v Swimquip, Inc., 36 AD3d 859 ; cf. Redmond v Jamaica Hosp. Med. Ctr., 62 AD3d 854 ; Canaan v Costco Wholesale Membership, Inc., 49 AD3d 583 ).
In light of our determination, the plaintiff's remaining contentions are academic. Skelos, J.P., Dickerson, Eng and Sgroi, JJ., concur.