Ferjuste v. 437 BMW, LLC

219 A.D.3d 1308

195 N.Y.S.3d 781

Jhon FERJUSTE, respondent,

v.437 BMW, LLC, appellant.

2021–01494

Index No. 516344/18

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

Argued—March 13, 2023

September 13, 2023

Rubin Paterniti Gonzalez Rizzo Kaufman, LLP, Garden City, NY (Juan C. Gonzalez and Maria Massucci of counsel), for appellant.

Liakas Law, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Jillian Rosen ], of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., LARA J. GENOVESI, BARRY E. WARHIT, LILLIAN WAN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated January 20, 2021. The order, insofar as appealed from, denied the defendant's cross-motion pursuant to CPLR 3126 for discovery sanctions.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On May 23, 2018, the plaintiff allegedly was struck by falling debris inside of premises in Brooklyn. On or about August 10, 2018, the plaintiff commenced this action against the defendant to recover damages for his personal injuries arising from the accident. Thereafter, the plaintiff moved, inter alia, to compel the defendant to appear for a deposition, and the defendant cross-moved pursuant to CPLR 3126 to dismiss the complaint, preclude evidence, or to compel a further deposition of the plaintiff. The defendant alleged that the plaintiff failed to timely produce certain photographs and videos, as required by CPLR 3101 and in dereliction of prior discovery orders. By order dated January 20, 2021, the Supreme Court, among other things, denied the defendant's cross-motion. The defendant appeals.

"The Supreme Court has broad discretion in supervising disclosure and in resolving discovery disputes" ( Lopez v. Bell Sports, Inc., 175 A.D.3d 1524, 1525, 109 N.Y.S.3d 203 ). "Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" ( Aha Sales, Inc. v. Creative Bath Prods., Inc., 110 A.D.3d 1019, 1019, 973 N.Y.S.2d 791 [internal quotation marks omitted]; see Lopez v. Bell Sports, Inc., 175 A.D.3d at 1525, 109 N.Y.S.3d 203 ). "The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the court" ( Nationstar Mtge., LLC v. Jackson, 192 A.D.3d 813, 815, 144 N.Y.S.3d 81, citing Smookler v. Dicerbo, 166 A.D.3d 838, 839, 88 N.Y.S.3d 235 ; see Llanos v. Casale Constr. Servs., Inc., 188 A.D.3d 864, 865, 136 N.Y.S.3d 137 ; Zakhidov v. Boulevard Tenants Corp., 96 A.D.3d 737, 738–739, 945 N.Y.S.2d 756 ). "Although public policy strongly favors that actions be resolved on the merits when possible, a court may resort to the drastic remedies of striking a pleading or precluding evidence upon a clear showing that a party's failure to comply with a disclosure order was the result of willful and contumacious conduct" ( Nationstar Mtge., LLC v. Jackson, 192 A.D.3d at 815, 144 N.Y.S.3d 81 ). " ‘The willful or contumacious character of a party's conduct can be inferred from the party's repeated failure to respond to demands or to comply with discovery orders, and the absence of a reasonable excuse for these failures,’ or by the failure to comply with court-ordered discovery over an extended period of time" ( id. at 815–816, 144 N.Y.S.3d 81, quoting Turiano v. Schwaber, 180 A.D.3d 950, 951–952, 119 N.Y.S.3d 206 ; see HSBC Bank USA, N.A. v. Branker, 177 A.D.3d 954, 958, 111 N.Y.S.3d 649 ).

CPLR 3101(i) broadly "requires [full] disclosure of ‘any films, photographs, video tapes or audio tapes’ of a party, regardless of who created the recording or for what purpose" ( Bermejo v. New York City Health & Hosps. Corp., 135 A.D.3d 116, 146, 21 N.Y.S.3d 78, quoting CPLR 3101[i] ). However, "the ‘full disclosure’ required by [ CPLR 3101(i) ] is simply the disclosure normally required by the CPLR for relevant, nonprivileged materials" ( Zegarelli v. Hughes, 3 N.Y.3d 64, 66, 781 N.Y.S.2d 488, 814 N.E.2d 795 ; see CPLR 3101[a] ; Forman v. Henkin, 30 N.Y.3d 656, 661–662, 70 N.Y.S.3d 157, 93 N.E.3d 882 ). In other words, parties are not required to be "more forthcoming than they would with any ordinary discovery material" but simply must " ‘produce and permit the party seeking discovery, or someone acting on his or her behalf, to inspect, copy, test or photograph’ the items produced" ( Zegarelli v. Hughes, 3 N.Y.3d at 68–69, 781 N.Y.S.2d 488, 814 N.E.2d 795, quoting CPLR 3120[1][i] ).

Here, the defendant first formally requested the materials in question by letter dated May 14, 2020. By order dated June 29, 2020, the Supreme Court directed the plaintiff to respond to the defendant's written demand by July 29, 2020, and the material was ultimately produced to the defendant on or about September 1, 2020. Although tardy, we note that the material was produced prior to a note of issue being filed and before the defendant's deposition (cf. Bermejo v. New York City Health & Hosps. Corp., 135 A.D.3d at 124–125, 21 N.Y.S.3d 78 ). Furthermore, "there is no indication that the plaintiff failed to comply with the court orders in order to gain an advantage in the litigation" ( Zakhidov v. Boulevard Tenants Corp., 96 A.D.3d at 739, 945 N.Y.S.2d 756 ;...