Burrell v. Baptista

180 A.D.3d 988

116 N.Y.S.3d 908 (Mem)

Lizabeth L. BURRELL, et al., Appellants,

v.Ingrid BAPTISTA, etc., Respondent.

2018-08293

Index No. 18471/10

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

Argued - October 17, 2019

February 26, 2020

Lizabeth L. Burrell and Geoffrey J. Ginos, Lincoln, Vermont, appellants pro se.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, BETSY BARROS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract and fraud, the plaintiffs appeal from an order of the Supreme Court, Kings County (Edgar G. Walker, J.), dated April 27, 2018. The order denied the plaintiffs' renewed motion pursuant to CPLR 3126, inter alia, to strike the defendant's answer.

ORDERED that the order is affirmed, without costs or disbursements.

A trial court has broad discretion to oversee the discovery process (see Tornheim v. Blue & White Food Prods. Corp., 73 A.D.3d 746, 900 N.Y.S.2d 424 ), and such discretion extends to the resolution of discovery disputes and the nature and degree of any penalty to be imposed pursuant to CPLR 3126 (see Corex–SPA v. Janel Group of N.Y., Inc., 156 A.D.3d 599, 601, 66 N.Y.S.3d 509 ; Morales v. Zherka, 140 A.D.3d 836, 836–837, 35 N.Y.S.3d 121 ). "The drastic remedy of striking a pleading is not appropriate absent a clear showing that the failure to comply with discovery demands was willful or contumacious" ( Warner v. Orange County Regional Med. Ctr., 126 A.D.3d 887, 887, 6 N.Y.S.3d 83 ).

Contrary to the plaintiffs' contention, the record does not establish a clear showing of a pattern of willfulness or contumacious conduct necessary to justify the striking of the defendant's answer pursuant to CPLR 3126, and the Supreme Court providently exercised its discretion in denying the plaintiffs' renewed motion for discovery sanctions (see Warner v. Orange County Regional Med. Ctr., 126 A.D.3d at 887, 6 N.Y.S.3d 83 ; Scorzari v. Pezza, 111 A.D.3d 916, 916–917, 976 N.Y.S.2d 140 ; Tornheim v. Blue & White Food Prods. Corp., 73 A.D.3d at 746, 899 N.Y.S.2d 650 ).

The plaintiffs' remaining contentions are either without merit or not properly before us.

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