Sinclair v City of New York

Sinclair v City of New York 2017 NY Slip Op 06311 Decided on August 23, 2017 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 August 23, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
ROBERT J. MILLER
BETSY BARROS
FRANCESCA E. CONNOLLY, JJ.
2015-07749
(Index No. 5474/12)

[*1]Alex Sinclair, appellant,

v

City of New York, et al., respondents.

Rubert & Gross, P.C., New York, NY (Soledad Rubert of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgow, Terri Feinstein Sasanow, and Janet L. Zaleon of counsel), for respondents.

DECISION & ORDER

Appeal from an order of the Supreme Court, Queens County (Phyllis Orlikoff Flug, J.), entered June 17, 2015. The order denied the plaintiff's motion to strike the defendants' answer for failing to comply with discovery.

ORDERED that the order is affirmed, with costs.

The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is within the broad discretion of the motion court (see Mears v Long, 149 AD3d 823; Parker Waichman, LLP v Laraia, 131 AD3d 1215, 1216; Lazar, Sanders, Thaler & Assoc., LLP v Lazar, 131 AD3d 1133; Wolf v Flowers, 122 AD3d 728). The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands or court-ordered discovery is willful and contumacious (see Mears v Long, 149 AD3d 823; Lucas v Stam,147 AD3d 921; Shah v Oral Cancer Prevention Intl., Inc., 138 AD3d 722, 724; Lazar, Sanders, Thaler & Assoc., LLP v Lazar, 131 AD3d at 1133; Brandenburg v County of Rockland Sewer Dist. #1, State of N.Y., 127 AD3d 680, 681). "The willful and contumacious character of a party's conduct can be inferred from either the repeated failure to respond to demands or comply with discovery orders, without demonstrating a reasonable excuse for these failures, or the failure to comply with court-ordered discovery over an extended period of time" (Wolf v Flowers, 122 AD3d at 729; see Mears v Long, 149 AD3d 823; Lazar, Sanders, Thaler & Assoc., LLP v Lazar, 131 AD3d at 1134; Brandenburg v County of Rockland Sewer Dist. #1, State of N.Y., 127 AD3d at 681).

While there is no dispute that the defendants have failed to provide certain discovery, given the defendants' explanation for the delay, we find that the defendants' conduct was not willful and contumacious, and the Supreme Court providently exercised its discretion in denying the plaintiff's motion to strike the defendants' answer.

The plaintiff's remaining contentions are without merit.

CHAMBERS, J.P., MILLER, BARROS and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court