Mierzejewski v Russo
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Mierzejewski v Russo 2019 NY Slip Op 32958(U) October 8, 2019 Supreme Court, Suffolk County Docket Number: 5110/2015 Judge: William G. Ford Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] COPY SHORT FORM ORDER INDEX NO.: 5110/2015 SUPREME COURT - S ATE OF NEW YORK I.A.S. PART 38 - SUFFOLK COUNTY PRESENT: HON. WILLIAM G. FORD JUSTICE OF THE SUPREME COURT Motion Submit Date: 06/06/19 Mot Seq 00.2.MG; RTC Mot Seq 003 MD PLAINTIFF'S COUNSEL: Robert K. Young & Associates PC RALPH MIERZEJEWSKI, 2284 Babylon Turnpike Plaintiff, _-againstALEXIA D. RUSSO & MARGARET HENDERSON, Defendant. ---------------------------------·x Merrick, New York 11566 DEFENDANTS' COUNSEL: Martin Fallon Molle 100 East Carver St. Huntington, New York 11743 Picciano & Scahill PC 900 Merchant's Concourse, Ste 310 Westbury, New York 11590 Read on plaintiffs motion for partial su ary judgment on liability pursuant to CPLR 3212 and further to strike defendant's answer for willful and contumacious refusal to provide discovery pursuant to CPLR 3126, the Court con idered the following papers: 1. Notice of Motion, Affirmation in Sup ort and other supporting papers; 2. Notice of Cross-Motion, Affirmation n Support and other supporting papers; and upon due deliberation and full consid ration of all of the same; it is ORDERED that plaintiff's motion seeki g partial summary judgment as to liability pursuant to CPLR 3212 against defendant is gra ted as follows; and it is further ORDERED that defendant Henderson's ross-motion for summary judgment on liability dismissing the complaint and action as against h r is denied for the reasons that follow; and it is further ORDERED that counsel for the parties ake their ready appearance the previously scheduled compliance conference for Novembe 12, 2019 ready to certify discovery as complete in this matter and that it is ready for trial; and it i further ORDERED that plaintiffs counsel is he eby directed to serve a copy of this decision and order with notice of entry on defense counsel ele tronically and via email; and it is further ORDERED that. if applicable, within 30 days of the entry of this decision and order, that defendant's counsel is also hereby directed to gi e notice to the Suffolk County Clerk as required [* 2] by CPLR 8019(c) with a copy of this decision an order and pay any fees should any be required. On March 23, 2015, plaintiffs commence this personal injury negligence action against defendants arising out of a motor vehicle collisio which occurred on September 4, 2014 on Route 27A at or near its intersection with South arll Avenue in Babylon, Suffolk County, New York. By the pleadings filed, plaintiff seeks d ages for personal injury premised on defendants negligence as a proximate cause of th underlying motor vehicle collision and attendant alleged serious injuries. Defendant Ru so joined issue filing an answer to the complaint on July 8, 2015. Discovery commenc d with the entry of a preliminary conference order on November 10, 2015 and the matter has s nee appeared before this Court on the compliance conference calendar for the purpose monitoring pretrial disclosure. Presently, plaintiff moves for an award of partial summary j dgment on liability and also for a discovery sanction striking defendant Russo's answer for w llful and contumacious refusal to produce discovery. In support of the application, plaintiff sub its a copy of the pleadings, a certified transcript of plaintiffs examination before trial, d a copy of the preliminary conference order. By his deposition testimony at an examination be ore trial held on March 31, 2016, plaintiff testified that on September 4, 2014 at approximat ly 11 :00 a.m. he operated his 2007 Dodge Durango SUV in sunny, dry and clear weather on dry roads travelling home on Montauk Highway. Immediately prior to collision, plainti stated his vehicle was stopped for approximately 20-30 seconds at a red light-contr lled intersection ofMontauk Highway and South Carll Avenue with 1 vehicle in traffic ahea of him. While stopped in traffic in this fashion with his foot on his vehicle's brake pedal plaintiff testified that his vehicle was struck in the rear by a vehicle operated by defendants pus ng his vehicle forward 10-15 feet. Defendant Henderson also cross-moves ti r summary judgment dismissing the complaint as against her. In support of her application, she submits a certified transcript of her examination before trial, as well as a certified tr script of the deposition taken of non-party witness Kyle Henderson. By her deposition testimony taken on Ma 30, 2017, defendant Henderson stated that she · owned a Honda Civic vehicle involved in a collis on with plaintiffs vehicle on September 4, 2014. She further testified that despite owning at vehicle, on the date and time in-question, she was generally unaware who operated the ve cle at the time of the incident. After the incident, she came to learn that defendant Russo as the operator who collided with plaintiff's vehicle, the police having contacted her husband o inform her of the occurrence and Russo and her son's involvement. Henderson further stated that her codefen ant Russo was her son, non-party Kyle Henderson' s girlfriend. Henderson asserted that to the best of her knowledge defendant Russo had not operated her vehicle prior to the date of e incident. Further, she testified that Russo did not reside with her or her son prior. Hender on's vehicle was located at her residence. Her son Kyle resided in Selden, Suffolk County, Ne York. She denied that Kyle had copies of her car keys or that he had ever operated her vehicle reviously. Further, he was not aware of her [* 3] husband giving Kyle permission to operate her ve ·cle. Thus, on the date of the incident, Henderson found it "unusual" that her vehicle wa not parked in her residence's driveway as was her custom. She also observed that her keys wer ffiissing from her house. However, she did testify that on the date of the incident her son Kyl and his girlfriend Russo had stayed at her residence, Henderson having picked them up and rought them there. Moreover, she stated that the two of them had disappeared from her house hile she was in the shower. By her estimation, 2 hours elapsed from first discovering er car missing and her husband learning from police that the incident involving her vehicle occu ed. All that time, Henderson stated she attempted calling Kyle with mixed success. She estified that in between hanging up on her and answering the phone, she conveyed to Kyle that s e was displeased with his taking of her car and threatened to call the police. In response, she sta ed that Kyle indicated he would return with her vehicle after picking up "shower shoes and de dorant" at the comer drugstore. When deposed on July 19, 2017, nonparty Kyle Henderson testified that on the date of subject incident he resided in Selden. Mr. Hend son's highest attainment of education was the 10th grade. He has been convicted of a crime on few occasions for drug possession and driving without a license as recently as 2014. Si ce 2014, he has had pending criminal charges for driving without a license and drug possession swell. He stated that defendant Russo is the mother of 2 of his children. He further testified t at due to an unrelated incident he sustained head trauma which has affected his memory and r call. Thus, beyond recalling having been involved in the collision on September 4, 2014, H nderson had little memory of the time of day it occurred or the location of the incident. His testimony disputed his mother' s acco tin that he recalled being dropped off at her house by a friend with Russo. He testified that h and Russo were dropped at his mother's house for the purpose of Mrs. Henderson driving hem to the hospital for a detox/rehab program at South Oaks Hospital. At some point, Henders n decided he wanted to leave his mother' s house with Russo, and he took his mother' s keys o her Honda Civic. He did not ask his mother for permission to operate her vehicle stating she ould never have permitted so since he did not have a valid driver's license. However, Henders n did testify that when he did have a valid driver's license previously, his mother would allo him to use her car, possibly a year or two prior to the subject incident. He did agree that h did not have keys to his mother's home. Henderson did not know whether defendant Russ had a valid driver's license on the date of the incident. He did not recall receiving phone calls from his mother prior to the incident, however he did recall that prior to the incident he and Rus o were headed to the store. Henderson had a recollection of going into his mother's pocketboo to retrieve her car keys. He denies having been the operator of the vehicle that collided wi plaintiff, having not had a valid driver's license, and recalling that Russo drove since she id not like his driving, that being an issue the two fought about. To his knowledge, Russo onl drove his mother' s vehicle on that one occasion. Relying upon his sworn deposition testim on liability arguing that defendants' are liable as initiated a rear-end collision with his vehicle stop owner of the alleged offending vehicle involved, liability to dismiss the complaint as against her codefendant Russo did not have permission to op conduct establishes her liability and demonstrate 3 ny, plaintiff seeks partial summary judgment e proximate cause for the incident having ed at a red light. Defendant Henderson, the lso cross-moves for summary judgment on ing that the record establishes that rate her vehicle and thus her own culpable that Henderson has not liability for the subject [* 4] incident. For her part, defendant Russo opposes pla' tiffs motion for partial summary judginent arguing that the motion is premature under CPLR 3212(£), her deposition outstanding. Further, relying upon her counsel' s affirmation, she argue triable issues of fact concerning liability preclude entry of judgment as a matter oflaw. F rther, Russo argues that her answer should not be stricken, but rather, if any discovery sanction s ould be imposed on a finding of willful and contumacious failure to provide demanded discov ry, that she should be precluded from offering testimony at the most. All of the parties' respect e arguments are addressed below. STANDARDS The motion court's role on review of a mo ion for summary judgment is issue finding, not issue determination (Trio Asbestos Removal orp. v Gabriel & Sciacca Certified Pub. Accountants, LLP, 164 AD3d 864, 865, 82 NYS d 127, 129 [2d Dept 2018]). The court should refrain from making credibility determinations ( iiewek v CoflSol. Edison Co. , 271AD2d643, 643, 707 NYS2d 871 [2d Dept 2000]). It is well settled that summary judgment i a drastic remedy which should not be granted when there is doubt as to the existence of atria le issue of fact. Where, however, one seeking summary judgment tenders evidentiary proof in admissible form establishing its defense sufficiently to warrant the court as a matter of la in directing judgment in its favor, the burden falls upon·the opposing party to show, also by evi entiary proof in admissible form, that there is a material issue of fact requiring a trial of the matte (see Zuckerman v. City ofNew York, 49 NY2d 557, 562, 427 NYS2d 595 [1980]). The evidenc presented on a motion for summary judgment must be scrutinized in the light most favorable to e party opposing the motion (see Goldstein v. 1 Monroe County, 77 AD2d 232, 236, 432 NYS2d 966 [1980]). The proponent on a motion of summary udgment must make a prima facie showing of entitlement to judgment as a matter of law, te dering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v rospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v New York Univ. Med. Cr., 64 NY2d 851, 487 NYS2d 316 [1 985];]; Zuckerman v City of New York, 49 NY2d 557, 4 7 NYS2d 595 (1980]). If the moving party fails in meeting this urden, the motion must be denied. If, however, this burden is satisfied, then the burden shifts to he opposing party to establish the existence of material issues of fact requiring a trial (see Zu kerman, supra). The function of the court in determining a motion for summary judgment is ·ssue finding, not issue determination (Pantote Big Alplta Foods, Inc. v Selie/man, 121 AD2d 2 5, 503 NYS2d 58 [1st Dept. 1986]). The burden then shifts to the party oppos ng the motion which must produce evidentiary proof in admissible form sufficient to require a tr~l of the material issues of fact (Rotlt v Barreto, 289AD2d 557, 735 NYS2d 197 [2d Dept. 200 ]; Rebecchi v Whitmore, 172 AD2d 600, 568 NYS2d423 [2dDept. 1991]; O'NeillvFishkill, 1 4AD2d487, 521 NYS2d272 [2dDept.1987]). The law is well-established that summary judgm nt is a drastic remedy to be granted only when there is clearly no genuine issue of fact to be pr sented at trial (see Andre v Pomeroy, 35 NY2d 361 . 362 NYS2d 131 [1974]; Benincasa v Garr bo, 141 AD2d 636, 529 NYS2d 797 [2d Dept. 1988]). [* 5] However, whereas here, the non-movant f; ls to oppose a motion for summary judgment, there is, in effect, a concession that no question of act exists, and the facts as alleged in the moving papers may be deemed admitted (Kuehne Nagel v Baiden, 36 NY2d 539, 3q9 NYS2d 667 [1975]). The plaintiff in a negligence action movin for summary judgment on the issue of liability must establish, prima facie, that the defendants br ached a duty owed to the plaintiff and that the defendants' negligence was a proximate cause of the alleged injuries (Montalvo v Cedeno, 170 AD3d 1166 [2d Dept 2019]; accord Buchanmi v eller, 169 AD3d 989, 991, 95 NYS3d 252, 254 [2d Dept 2019][holding that plaintiff-movant seek ng summary judgment on liability is no longer required to show freedom from comparative fault in order to establish prima facie entitlement to judgment as a matter of law]; quoting Rodriguez City of New York,31 NY3d 312 [2018]). A rear-end collision with a stopped or stop ing vehicle creates a prima facie case of negligence with respect to the operator of the mo ng vehicle and imposes a duty on the operator to rebut the inference of negligence by providing non-negligent explanation for the collision" (Mulhern v Gregory, 161AD3d881 , 883, 75 NY 3d 592, 594 [2d Dept 2018]; Comas-Bourne v City of New York, 146 AD3d 855, 856, 45 NYS d 182, 183 [2d Dept 2017]; Whelan v Sutherland, 128 AD3d 1055, 1056, 9 NYS3d 639 640 [2d Dept 2015]; Tutrani v. County of Suffolk, I 0 NY3d 906, 908; Gutierrez v. Trilliu USA, LLC, 111 AD3d 669, 670-671, 974 NYS2d 563; Pollard v. Independent Beauty & B rber Supply Co., 94 AD3d 845, 846, 942 NYS2d 360; Perez v Roberts, 91 AD3d 620, 621, 936 NYS2d 259, 260 [2d Dept 2012]; Le Gra11d v Silbersteill, 123 AD3d 773, 774, 999 N S2d 96, 97 [2d Dept 2014]). The claim that the lead vehicle made a su en stop, standing alone, is insufficient to rebut the presumption of negligence on the part o the following vehicle (see Zdenek v Safety Consultants, Inc., 63 AD3d 918, 918, 883 NYS2 57, 58 [2d Dept 2009]; Kastritsios v. Marcello, 84 AD3d 1174, 923 NYS2d 863; Fran o v. Breceus, 70 AD3d 767, 895 NYS2d 152; Mallen v. Su, 67 AD3d 974, 890 NYS2d 79; Rai1 ord v. Han, 18 AD3d 638, 795 NYS2d 645; Russ v. Investech Secs., 6 AD3d 602, 775 NYS2 867; Xian Hong Pan v Buglione, 101 AD3d 706, 707, 955 NYS2d 375, 377 (2d Dept 2012]). However, "[i]fthe operator cannot come forward with any evidence to rebut the inference f negligence, the plaintiff may properly be awarded judgment as a matter oflaw'' (Barile v. azzarini, 222 AD2d 635, 636, 635 NYS2d 694; D'Agostino v YRC, Inc., 120 AD3d 1291, 1 92, 992 NYS2d 358, 359 [2d Dept 2014]). "When the driver of an automobile appro hes another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his vehicle, and to exercise reasonable care to avoid colliding with t e other vehicle" (Comas-Boume v City of New York, 146 AD3d 855, 856, 45 NYS3d 182, 83 [2d Dept 2017]). Drivers have a duty to see what should be seen and to exercise reasonab care under the circumstances to avoid an accident (Williams v Spencer-Hall, 113 AD3d 7 9, 760, 979 NYS2d 157, 159 [2d Dept 2014]). a rear-end collision with a stopped vehicle create a prirna facie case of liability with respect to the operator of the rearmost vehicle, thereby req ring that operator to rebut the inference of negligence by providing a nonnegligent explanati n for the collision (Sayyed v Murray, 109 AD3d 464, 464, 970 NYS2d 279, 281 [2d Dept 2 13]). 5 [* 6] A possible non-negligent explanation for a ear-end collision could be the sudden stop of the lead vehicle," however, it is equally true that" ehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and fr quent, must be anticipated by the driver who follows, since he or she is under a duty to maintai a safe distance between his or her car and the 3d 1084, 1085, 49 NYS3d 739, 741 [2d car ahead" (Tumminello v City of New York, 148 Dept 2017]; Shamalt v. Richmond County Ambu nee Serv., 279 A.D.2d 564, 565, 719 N.Y.S.2d 287; see Gutierrez v Trillium USA, LL , 111AD3d669, 671, 974 NYS2d 563, 566 [2d Dept 2013]; Robayo v. Agltaabdul, 109 A.D.3 892, 893, 971N.Y.S.2d317). Even assuming that a lead vehicle stopped short or sudd ly, following vehicles should not escape liability for an assumed failure to maintain a prope or safe following distance under the 1 presented circumstances, where the record present a scenario with triable questions of fact ripe for jury determination, rather than summary dete ination on the law (see e.g. Romero v Al Haag & Son Plumbing & Heating, Inc., 113 AD d 746, 747, 978 NYS2d 895, 896 [2d Dept 2014][even assuming that the defendant driver fail d to maintain a reasonably safe distance and rate of speed while traveling behind the plaintiffs ehicle under Vehicle and Traffic Law § 1129[a], defendant's deposition testimony relied u on by plaintiff, itselfraised a triable issue of fact on whether the plaintiff contributed to the ace dent by driving in an erratic manner]; accord Fernandez v Babylon Mun. Solid Waste, 117 AD d 678, 679, 985 NYS2d 289, 290 [2d Dept 2014] [under circumstances where plaintiff came t an abrupt stop for no apparent reason resulting in a collision, a triable issue of fact exist ; Sokolowska v Song, 123 AD3d 1004, 1004, · 999 NYS2d 847, 848 [2d Dept 2014]). Thus, the burden is placed on the driver of he offending vehicle, as he or she is in the best position to explain whether the collision was ue to a mechanical failure, a sudden stop of the vehicle ahead, unavoidable skidding on wet pa ement, or some other reasonable cause (see Abbott v Picture Cars E., Inc., 78 A.D.3d 869, 91 N.Y.S.2d 449 [2d Dept 201 O]; DeLouise v S.K.I. Wholesale Beer Corp., 75 A.D.3d 489, 904 N.Y.S.2d 761 [2d Dept 2010]; Moran v Singh, 10 A.D.3d 707, 782 N.Y.S.2d 284 [2d Dep 2004]). Here, having reviewed his moving papers, he Court finds that plaintiff has met his prima facie burden for entitlement to summary judgmen on liability based on the submission of her sworn testimony which demonstrates a prima faci case of negligence against the defendant. Thus, the burden has shifted to defendants to com forward with a non-negligent explanation for the incident. Arguing in opposition to an award of parti I summary judgment on liability, first Russo's counsel argues that plaintiff's motion is prematur under CPLR 3212(f), Russo having yet to be deposed. This argument is not persuasive and is gally insufficient to preclude entry of summary judgment in plaintiff's favor. · A summary judgment motion coming befo determined premature and thus denied (Adrianis 375 [2d Dept 2006][holding that a motion court p judgment motion as premature where at least one the parties had previously stipulated to hold that d made]). Put differently, defendant's argument th opportunity to fully probe and pursue the merits o 6 e the close of pretrial disclosure may be Fox;30 AD3d 550, 550-51, 817 NYS2d 374, perly denies a partial liability summary arty's deposition was still outstanding, and position only seven days after the motion was t she has been unfairly deprived the affirmative defenses without the benefit of [* 7] party depositions may warrant denial of a prematu Volunteer Fire Co., Inc. , 39 AD3d 784, 785, 832 party should be afforded a reasonable opportunity determination of a motion for summary judgment] e application (see Amico v Melville YS2d 813 [2d Dept 2007][resolving that a o conduct discovery prior to the . By the same token, the Second Departmen is clear that defendant' s mere hope or speculation that additional discovery might lead to or create a triable fact issue is insufficient to preclude the entry of summary judgment on liabili y in this negligence motor vehicle action (see e.g. Rodriguez v Farrell, 115 AD3d 929, 93 1, 983 NYS2d 68, 70 [2d Dept 2014][appellate court determining that summary judgment not prematur where defendant failed to demonstrate that discovery would lead to relevant evidence or that cts essential to justify opposition to the motions were exclusively within the knowledge a d control of the plaintiffs]; Medina v Rodriguez, 92 AD3d 850, 851, 939 NYS2d 514, 5 5 [2d Dept 2012]; Kimyagarov v Ni'COfl Taxi Corp., 45 AD3d 736, 737, 846 NYS2d 309, 310- 11 [2d Dept 2007]; Hill v Ackall, 71 AD3d 829, 829-30, 895 NYS2d 837, 838 (2d Dept 2010 ). Therefore, a party opposing summary jud ent is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated." Climelovsky v. Country Club Homes, l c. , 106 AD3d 684, 964 NYS2d 245, 246 [2d Dept 2013]; Martinez v. 305 W. 52 Condo., 128 3d 912, 914, 9 NYS3d 375, 377 [2d Dept 2015]["A party should be afforded a reasonable o portunity to conduct discovery prior to the determination of a motion for summary judgment" ). The non-movant should be afforded a reasonable opportunity to conduct discovery prior o the determination of a motion for summary judgment (see Video Voice, Inc. v. Local T. V., In ., 114 AD3d 935, 980 NYS2d 828; Bank of Am., N.A. v. Hillside Cycles, Inc., 89 AD3d 653, 32 NYS2d 128; Venables v. Sagona, 46 AD3d 672, 673, 848 NYS2d 238). Further, non- ovant is also entitled to obtain further discovery when it appears that facts supporting th opposing party's position may exist but cannot then be stated (see CPLR 32 12[f]; Nichols n v. Bader, 83 AD3d 802, 920 NYS2d 682; Family-Friendly Media, Inc. v. Recorder Tel. Ni twork, 74 AD3d 738, 739, 903 NYS2d 80; J11seinoski v. New York Hosp. 1Yed. Ctr. ofQuee s, 29 AD3d 636, 637, 815 NYS2d 183). Ma/ester v. Rampil, 118 A.D.3d 855, 856, 988 N. .S.2d 226, 227-28 [2d Dept 2014]). Under CPLR 3 212(f), "where facts essenti 1 to justify opposition to a motion for summary judgment are exclusively within the kno ledge and control of the movant, summary judgment may be denied .... This is especially so ere the opposing party has not had a 1 reasonable opportunity for disclosure prior to the aking of the motion" (Juseinoski v. New York Hosp. Med. Ctr. of Queens, 29 AD3d 636, 37, 815 NYS2d 183, 184-85 [2d Dept 2006]; Baron v. Inc. Vil. of Freeport, 143 AD2d 792, 9 93; 533 NYS2d 143, 148 [2d Dept 1998]). Here, defendant's mere conclusions are in ufficient to warrant denial of summary judgment. More to the point, it is clear that defe dant's o-wn conduct or failure to abide her discovery obligations constitutes the outstanding iscovery. Thus, this Court will not countenance such double dealing on the defendan ' s part. Her alleged willful and contumacious refusal to participate in pretrial disclosure cannot lso serve as a basis to prevent judgment as a matter of liability, particularly where the Court o Appeals has made clear that post Rodriguez freedom from comparative fault no longer should serve as a barrier from resolving liability in a rear-end collision context. 7 [* 8] Moreover, defendant Russo' s opposition c nsists solely of her counsel's affirmation in opposition. The law in this regard is settled. De ndant's' reliance on her attorney's affirmation, without further submission of sworn t stirnony by any competent witness with direct personal or firsthand knowledge of the facts and ci cumstances underlying the subject accident, is insufficient to establish triable issues of fact wa anting denial of summary judgment. The Second Department has repeatedly cautioned coun el on this point (Huerta v Longo, 63 AD3d 684, 685, 881 NYS2d 132, 133 [2d Dept 2009]; C lli11s v Laro Serv. Sys. of New York, Inc., 36 AD3d 746, 746-47, 829 NYS2d 168, 169 [2d Dep 2007][attomey's affirmation, together with inadmissible hearsay documents insufficient to wa ant denial of the motion]; Cordova v Vinueza, 20 AD3d 445, 446, 798 NYS2d 519, 52 [2d Dept 2005][attorney's affirmation offering speculation unsupported by any evidence sufficient to raise a triable issue of fact]). Thus, defendant fails to carry her shifted b rden ofrebutting plaintiff's prima facie case of negligence against her by competent or admissi le proof raising a triable question of fact meriting a liability trial and precluding judgment a matter of law on liability for the plaintiff. Accordingly, because defendant Russo ha failed to come forward with competent and admissible proof demonstrating triable issues off: ct or non-negligent explanations for the collision here, necessitating a trial on her liability, this Court grants plaintiffs partial summary judgment on liability against defendant Russo un r CPLR 3212. As regards defendant Henderson, the anal sis differs and merits a wholly different result. On her claim that she bears no responsibility fort e subject incident, having merely owned the involved and alleged offending vehicle, but havin not consented to or permitted her codefendant/tortfeasor's operation, the law provides as a general matter that such an owner of a vehicle, is statutorily liable for an accident under ehicle and Traffic Law § 388, but may be indemnified by a negligent user (Ciatto v Lieber an, 1 AD3d 553, 556, 769 NYS2d 48, 51 [2d Dept 2003]). Thus, Vehicle and Traffic Law§ 3 8(1) provides that as relevant here that the owner of a motor vehicle shall be liable for the ne ligence of one who operates the vehicle with the owner's express or implied consent. By its pl in meaning, the statute creates a presumption that the driver was using the vehicle with the own r's express or implied permission, which only may be rebutted by substantial evidence sufficien to show that the vehicle was not operated with the owner's consent (Fuentes v Yirgil, 119 AD3d 522, 522-23, 989 NYS2d 498, 499 (2d Dept 2014]; see also Pante/eon v Amaya, 85 AD3d 99 , 994, 927 NYS2d 85, 86 (2d Dept 201 l][it is owner's express or implied consent; this presumed that an operator drives a vehicle with presumption is rebuttable on "substantial evidenc " sufficient to show that the vehicle was not operated with the owner's consent]). However, "[t]he uncontradicted testimony of a vehicle owner that the vehicle was operated without his or her permission, does not, y itself, overcome the presumption of permissive use " (Blassberger v Varela, 129 AD d 756, 757, 11NYS3d238, 240 [2d Dept 2015]). The question of consent is ordinarily for the jury (Marino v City ofNew York, 95 .AD3d 840, 841, 943 NYS2d 564, 566 [2d Dept 2[,12]). onb Here, the motion record does not necessaqly present a clear paradigm of blamelessness for defendant Henderson. Her testimony and th~'t: of her non-party son's is consistent that she did not expressly permit his use or that of her co efendant Russo. Further, Mr. Henderson made clear that he did not have a valid driver' s license nd that he was under the impression his mother 8 [* 9] would not have permitted him to operate her vehic . Further, Russo and Mr. Henderson were driven to Mrs. Henderson's residence, whether by er or someone else prior to the subject incident. Nevertheless, Mr. Henderson did testify at he knew where to find his mother's keys in her house, and that given his issues with drugs, e found it odd for to leave her pocketbook out in the open unattended. Further, although Mrs. H nderson testified that Russo and her son disappeared while she was in the shower, she prov· ed no clear testimony on what efforts she took to report her vehicle missing in the approxim te 2 hours from her discovery to her husband's learning of the incident from the police. Mrs. Henderson did state she called her son on several occasions, some attempts being success 1, and that she further learned Russo and he left the house with her vehicle to purchase some it ms at the "corner drugstore." But the context here is crucial: Mrs. Henderson brought he son and his girlfriend to her house to transport them to drug rehabilitation/detoxificatio She did not trust her son to operate her vehicle, but by the same token felt comfortable to ave him and his girlfriend unsupervised in her home. Given the resulting muddy picture all of th testimony, and in view of precedent holding that resolution of the permissive use question is o relegated to the finder of fact, this Court denies defendant Henderson's motion for summa judgment as material triable issues of fact warrant trial before a jury. Lastly, before the Court is plaintifrs motio to preclude defendant Russo's testimony come time of trial on the basis that she has never b en produced for an examination before trial during the conduct of discovery in this case. As oted previously, the parties' preliminary conference order issued in this matter in Novembe 2015. Since then this matter has made over 20 appearances before this Court's discovery com liance conference calendar. The time for discovery to conclude has certainly come. It is well settled that a trial court is vested 'th broad discretion to supervise the discovery process, and its determinations in that r spect will not be disturbed in the absence of demonstrated abuse (see United Airlines v. Ogde1: New York Servs., 305 AD2d 239, 240, 761 NYS2d 16; Cho v. 401-403 57th St. Realty Corp. 300 AD2d l 74, 176, 752 NYS2d 55); Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman Dicker, 1 AD3d 223, 224, 767 NYS2d 228 [1st Dept. 2003]). However, the courts on the ot er hand recognized that "parties to a civil dispute are free to chart their own litigation cours and, in so doing, they may stipulate away statutory, and even constitutional rights'" (Ast11di 'lo v MV Transp., Inc., 136 AD3d 721, 721, 25 NYS3d 289, 290 [2d Dept 2016]). Thus, it h often been said that for "the credibility of court orders and the integrity of our judicial syste are to be maintained, a litigant cannot ignore court orders with impunity" (Jones v LeFrance L asing Ltd. Partnership, 110 AD3d 1032, 1033, 973 NYS2d 798, 800 [2d Dept 2013]). The test to be employed by the Supreme Court when determining discovery issues is one based on usefulness and reason (see Andon v. 30 304 J.l fott St. Assoc., 94 NY2d 740, 746, 709 NYS2d 873). However, discovery demands whi hare unduly burdensome, lack specificity, or seek privileged and/or irrelevant information are i proper and will be vacated (see Board of Mgrs. oftlie Park Regent Condominium v. Park egentAssoc., 78 AD3d 752, 753, 910 NYS2d 654; Bell v. Cobble Hill Healtlt Ctr., I11c. 22 AD3d 620, 621, 804 NYS2d 362; Lopez v. H1mti11gton Autoha11s, 150 AD2d 351, 352, 540 YS2d 874; H.R. Prince, Inc. v Elite Envtl. Sys., Inc. , 107 AD3d 850, 850, 968 NYS2d 122, 23-24 [2d Dept 2013]) 9 [* 10] It is incumbent on the party seeking disclos re to demonstrate that the method of discovery sought will result in the disclosure of rel vant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" (Crazytown Furniture v. Brooklyn Union Gas Co., 150 AD2d 420, 421 , 541 NYS2d O; see Seigel, N.Y. Prac. § 345; CPLR 3 lOl[a]; Herbst v. Bruhn, 106 AD2d 546, 483 N 2d 363; Andon v. 302-304 Mott St. Assocs., 94 NY2d 740, 746, 709 NYS2d 873; Palermo Ma on Constr. v. AAR.K Holding Corp., 300 AD2d 460, 751NYS2d599; Vyas v Campbell, 4 3d 417, 418, 771 NYS2d 375, 376 [2d Dept 2004]). Generally, "public policy strongly favors t resolution of actions on the merits whenever possible, the striking of a party's pleading is a dras ·c remedy which is warranted only where there has been a clear showing that the failure to c mply with discovery is willful and contumacious" (Desiderio v Geico Gen. Ins. Co., 53 AD3d 1322, 1322, 61NYS3d309, 311 [2d Dept 2017]). On an application seeking striki g of a party's pleading for refusal to comply with a court's discovery order, movant bears the b den of making a "clear showing" that the failure to comply was willful and contumacious (S nger v Riskin, 137 AD3d 999, 1001, 27 NYS3d 209, 211-12 [2d Dept 2016][intemal citati ns omitted]). A party's refusal "to obey an order for disc osure or willfully fail[ure] to disclose information which the court finds ought to have be.en disclosed ... the court may ... strik[e] out pleadings ... or dismiss[ ] the action ... or render[ ] judgment by default against the disobedient party" (CPLR 3126[3] ). " While actions should be resolved on the merits when possible, a court may strike [a pleading] upon a clear showing that a party's] failure to comply with a disclosure order was the result of willful and contumacious c nduct." "Willful and contumacious conduct may be inferred from a party's repeated failure to mply with court-ordered discovery, coupled with inadequate explanations for the failures to co ply, or a failure to comply with court-ordered discovery over an extended period of time (Hong uiKuang v MetLife, 159 AD3d 878, 881, 74 NYS3d 88, 92 [2d Dept 2018]). The failure to comply with deadlin sand provide good-faith responses to discovery demands "impairs the efficient function ng of the courts and the adjudication of claims." The Court of Appeals has also pointed l t that "(c]hronic noncompliance with deadlines breeds disrespect for the dictates of the ivil Practice Law and Rules" and has also remarked that "(i]f the credibility of court orders a d the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity (Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 207, 959 NYS2d 74, 79 [2d Dept 2012]). The nature and degree of the penalty to be mposed pursuant to CPLR 3126 is a matter within the discretion of the trial court (Estaha v Q ow, 101AD3d940, 940-41, 956 NYS2d 143, 144 [2d Dept 2012]). The drastic remedy of strik g an answer is not appropriate absent a clear showing that the failure to comply ~rith discovery emands was willful or contumacious (JPMorga11 Chase Bank, N.A. v New York State ept. of Motor Vehicles, 119 AD3d 903, 903, 990 NYS2d 577, 578-79 [2d Dept 2014]). The striking of a pleading may be approprf-te where there is a clear showing that the failure to comply with discovery demands or cou11-ordered discovery is willful and contumacious. The willful and contumacious ch acter of a party's conduct can be inferred from the party's repeated failure to comply with discov ry demands or orders without a reasonable 10 [* 11] excuse (Mears v Long, 149 AD3d 823, 823-24, 2 NYS3d 124, 125 [2d Dept 2017]). It is clear that the willful and contumacio s nature of a party's conduct may properly be inferred from repeated delays in complying with the plaintiffs discovery demands and the Supreme Court's discovery schedule, the failure o provide an adequate excuse for such delays, and the proffer of inadequate discovery response , which otherwise evince a lack of a good-faith effort to address the requests meaningfully (Stu r v Newpointe Estates Condominium, 152 AD3d 555, 557, 58 NYS3d 509, 512 [2d Dept 2 17]; Schiller v Sunltarbor Acquisition I, LLC, 152 AD3d 812, 813, 60 NYS3d 79, 81 [2d Dept 017]; Henry v Datson, 140 AD3d 1120, 1122, 35 NYS3d 383, 385 [2d Dept 2016]; Stone v Zil: ouklwva, 119 AD3d 928, 929, 990 NYS2d 567, 568 [2d Dept 2014]; H.R. Prince, Inc. v Elite E vtl. Sys., Inc., 107 AD3d 850, 851, 968 NYS2d 122, 124 [2d Dept 2013]; Silberstein v Maimo1t es Med. Ctr., 109 AD3d 812, 814, 971 NYS2d 167, 169 (2d Dept 2013]). Given the history adduced above, this C rt finds adequate evidence of willful and contumacious failure to provide discovery on de endant Russo's part. Moreover, with defendant's silence failure to oppose the pendin application, this Court is convinced that no reasonable excuse exists for defendant's failures to abide her discovery obligations in this litigation. Accordingly, this Court grants plaintiff application in the following manner: It is ORDERED that premised upon plaintif s demonstration of defendant Alexia D. Russo's willful and contumacious failure to participate · pretrial disclosure and to be produced for a deposition in this matter, defendant Russo is no precluded from offering any testimony concerning liability or damages come time of tri in this action. The foregoing constitutes the decision order of this Court. Dated: October 8, 2019 Riverhead, New York WILLIAM G. FORD, J.S.C. _ _ _ FINAL DISPOSITION -~X~- 1 NON-FINAL DISPOSITION
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