Sansone v. Syracuse Univ.

202 A.D.3d 851

158 N.Y.S.3d 873 (Mem)

Gabriel SANSONE, appellant-respondent,

v.SYRACUSE UNIVERSITY, respondent-appellant,Tony Chao, respondent, et al., defendant.

2018–09764, 2019–03827

Index No. 512031/15

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

Argued—October 12, 2021

February 9, 2022

Held & Hines, LLP, Brooklyn, NY (Uri Nazryan of counsel), for appellant—respondent.

Barclay Damon LLP, Syracuse, NY (Matthew J. Larkin of counsel), for respondent—appellant.

COLLEEN D. DUFFY, J.P., BETSY BARROS, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, (1) the plaintiff appeals, and the defendant Syracuse University cross-appeals, from an order of the Supreme Court, Kings County (Ellen M. Spodek, J.), dated June 28, 2018, and (2) the plaintiff appeals from an order of the same court dated January 17, 2019. The order dated June 28, 2018, insofar as appealed from, granted that branch of that defendant's motion which was, in effect, to preclude the plaintiff from taking that defendant's deposition. The order dated June 28, 2018, insofar as cross-appealed from, denied that branch of that defendant's motion which was pursuant to CPLR 3126 to strike the complaint. The order dated January 17, 2019, insofar as appealed from, granted that branch of that defendant's cross motion which was pursuant to CPLR 3126 to strike the complaint, and directed dismissal of the complaint.

ORDERED that the order dated June 28, 2018, is affirmed insofar as appealed from; and it is further,

ORDERED that the cross appeal from the order dated June 28, 2018, is dismissed in light of our determination of the appeal from the order dated January 17, 2019; and it is further,

ORDERED that the order dated January 17, 2019, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendant Syracuse University.

" ‘Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court’ " ( Vays v. Luntz, 179 A.D.3d 744, 746, 113 N.Y.S.3d 556, quoting Morales v. Zherka, 140 A.D.3d 836, 836–837, 35 N.Y.S.3d 121 ). " ‘When a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is within the court's discretion to strike or dismiss a pleading’ " ( Ewa v. City of New York, 186 A.D.3d 1195, 1196, 127 N.Y.S.3d 911, quoting Empire Enters. I.J.J.A., Inc. v. Daimler Buses of N. Am., Inc., 172 A.D.3d 819, 820, 101 N.Y.S.3d 70 ; see Park Side Constr. Contrs., Inc. v. Bryan's Quality Plus, LLC, 156 A.D.3d 804, 806–807, 68 N.Y.S.3d 90 ). "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" ( Ewa v. City of New York, 186 A.D.3d at 1196, 127 N.Y.S.3d 911 ; see CPLR 3126[3] ; Ahmed v. Ahmed, 175 A.D.3d 1363, 1364, 109 N.Y.S.3d 200 ). " ‘ "Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time" ’ " ( Ewa v. City of New York, 186 A.D.3d at 1196, 127 N.Y.S.3d 911, quoting Honghui Kuang v. MetLife, 159 A.D.3d 878, 881, 74 N.Y.S.3d 88, quoting Rock City Sound, Inc. v. Bashian & Farber, LLP, 83 A.D.3d 685, 686–687, 920 N.Y.S.2d 394 ; see Empire Enters. I.J.J.A., Inc. v. Daimler Buses of N. Am., Inc., 172 A.D.3d at 820, 101 N.Y.S.3d 70 ).

Here, the plaintiff repeatedly violated the Supreme Court's discovery orders, failing to provide timely and complete responses to the defendants’ amended interrogatories, requests for a bill of particulars, and health and employment authorizations, without offering any reasonable excuse for the significant delay in compliance (see Ewa v. City of New York, 186 A.D.3d at 1195–96, 127 N.Y.S.3d 911 ; Vays v. Luntz, 179 A.D.3d at 746–747, 113 N.Y.S.3d 556 ). Most notably, in violation of two court orders directing the plaintiff to appear for a deposition on a date certain, one of which warned in bold face print that a "FAILURE TO...