Field v. Bao

Field v Bao (2016 NY Slip Op 04691)

Field v Bao

2016 NY Slip Op 04691

Decided on June 15, 2016

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 15, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
L. PRISCILLA HALL
LEONARD B. AUSTIN
HECTOR D. LASALLE, JJ.

2015-08210
(Index No. 30210/12)

[*1]Elizabeth Field, etc., plaintiff,

v

Philip Q. Bao, etc., et al., appellants.

Simmons Jannace DeLuca, LLP, Hauppauge, NY (William T. Collins III of counsel), for appellants Philip Q. Bao, Kevin T. Watkins, and Rahuldev S. Bhalla.

Connick, Myers, Hass & McNamee, PLLC, Mineola, NY (Glenn P. McNamee of counsel), for appellants Kevin J. Schiller and North Suffolk Family Medical Care, PLLC.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice and wrongful death, the defendants Philip Q. Bao, Kevin T. Watkins, and Rahuldev S. Bhalla appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Rebolini, J.), dated June 12, 2015, as denied their unopposed motion pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them for the plaintiff's failure to comply with court-ordered discovery, and the defendants Kevin J. Schiller and North Suffolk Family Medical Care, PLLC, separately appeal, as limited by their brief, from so much of the same order as denied their unopposed motion for the same relief as to them.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, and the defendants' separate motions pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them are granted.

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court (see Kihl v Pfeffer, 94 NY2d 118, 122-123; Umar v Ohrnberger, 72 AD3d 1066; Joseph v Iannace, 6 AD3d 502, 503; Ordonez v Guerra, 295 AD2d 325, 326). The drastic remedy of dismissing a complaint for a plaintiff's failure to comply with court-ordered discovery is warranted where a party's conduct is shown to be willful and contumacious (see Rowell v Joyce, 10 AD3d 601; My Carpet, Inc. v Bruce Supply Corp., 8 AD3d 248). The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse (see Commisso v Orshan, 85 AD3d 845; Workman v Town of Southampton, 69 AD3d 619, 620; Horne v Swimquip, Inc., 36 AD3d 859, 859).

Here, the plaintiff's willful and contumacious conduct can be inferred from her repeated failure, over a period of more than two years, to respond to any of the defendants' discovery [*2]demands, even after being directed to do so by court order, as well as her failure to respond to the defendants' separate motions to dismiss the complaint and, consequently, the absence of any reasonable excuse for her noncompliance (see Morgenstern v Jeffsam Corp., 78 AD3d 913, 914; Batshever v Jafar, 73 AD3d 1108; Horne v Swimquip, Inc., 36 AD3d 859; Sowerby v Camarda, 20 AD3d 411; Bodine v Ladjevardi, 284 AD2d 351; Birch Hill Farm, Inc. v Reed, 272 AD2d 282, 283).

Accordingly, the Supreme Court should have granted the defendants' separate motions pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them.

CHAMBERS, J.P., HALL, AUSTIN and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court