Appellate Division of the Supreme Court of New York, 2005

Devito v. J & J Towing, Inc.

Appellate Division of the Supreme Court of New York · Decided April 25, 2005

17 A.D.3d 624; 794 N.Y.S.2d 74; 2005 N.Y. App. Div. LEXIS 4391

Cases that cite this one

11 later published cases cite this decision.

Smookler v. Dicerbo (Appellate Division of the Supreme Court of New York 2018)
Watson v. Hall (Appellate Division of the Supreme Court of New York 2007)
Ahmed v. Ahmed (Appellate Division of the Supreme Court of New York 2019)
Corex-SPA v. Janel Group of New York, Inc. (Appellate Division of the Supreme Court of New York 2017)
Quinones v. Long Island Jewish Medical Center (Appellate Division of the Supreme Court of New York 2011)
Dank v. Sears Holding Management Corp. (Appellate Division of the Supreme Court of New York 2010)
Caprio v. 1025 Manhattan Avenue Corp. (Appellate Division of the Supreme Court of New York 2009)
Duncan v. Hebb (Appellate Division of the Supreme Court of New York 2008)
Brown v. Astoria Federal Savings (Appellate Division of the Supreme Court of New York 2008)
Howe v. Jeremiah (Appellate Division of the Supreme Court of New York 2008)
Powell v. Cipollaro (Appellate Division of the Supreme Court of New York 2006)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In an action to recover damages for personal injuries, the *625plaintiff appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated June 15, 2004, which granted the motion of the defendant J & J Towing, Inc., and John E Wiesener, and the separate motion of the defendant Michael J. Piazza, to strike the complaint pursuant to CPLR 3126.

Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

A court may, inter alia, strike the “pleadings or parts thereof’ (CPLR 3126 [3]) as a sanction against a party who “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed [upon notice]” (CPLR 3126). The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter of the Supreme Court’s discretion (see Espinal v City of New York, 264 AD2d 806 [1999]; Soto v City of Long Beach, 197 AD2d 615 [1993]). The striking of a pleading is appropriate where there is a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith (see Rowell v Joyce, 10 AD3d 601 [2004]; Beneficial Mtge. Corp. v Lawrence, 5 AD3d 339 [2004]; cf. Harris v City of New York, 211 AD2d 663 [1995]). Furthermore, willful and contumacious conduct can be inferred from a party’s repeated failures to adequately respond to both discovery demands and court directives to comply with such demands, coupled with inadequate explanations for the failures to comply (see Schwartz v Suebsanguan, 15 AD3d 565 [2005]; Rowell v Joyce, supra; Penafiel v Puretz, 298 AD2d 446 [2002]).

In the case at bar, the defendants demonstrated the plaintiffs repeated failure to fully provide requested discovery, including an examination before trial, and his failure to comply with three court orders directing that discovery. In response thereto, the plaintiff did not offer any reasonable excuse for his defaults. Accordingly, the Supreme Court providently exercised its discretion in striking the complaint (see Birch Hill Farm v Reed, 272 AD2d 282 [2000]). Santucci, J.P., Krausman, Luciano and Fisher, JJ., concur.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.