Sigma Psychological, P.C. v. Chubb Indem. Ins. Co.

Present PESCE

In support of its motion, defendant set forth detailed and specific reasons for its belief that plaintiff may be ineligible to recover assigned first-party no-fault benefits as a fraudulently incorporated professional corporation ( see State Farm Mut. Auto. Ins. Co. v. Mallela, 4 N.Y.3d 313 [2005] ), and established that it had sought disclosure related to that defense. Defendant further established that plaintiff had failed to comply with a so ordered stipulation and two court orders wherein plaintiff had been directed to provide the disclosure. “The determination whether to strike a pleading for failure to comply with court-ordered disclosure lies within the sound discretion of the trial court' “ (Orgel v. Stewart Tit. Ins. Co., 91 A.D.3d 922, 923 [2012] and Giano v. Ioannou, 78 A.D.3d 768, 770 [2010], quoting Fishbane v. Chelsea Hall, LLC, 65 A.D.3d 1079, 1081 [2009];see Kihl v. Pfeffer, 94 N.Y.2d 118, 123 [1999] ). Although dismissing a complaint pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party's conduct is shown to be willful, contumacious or in bad faith ( see Rock City Sound, Inc. v. Bashian & Farber, LLP, 83 A.D.3d 685 [2011] ). In the present case, plaintiff's willful and contumacious conduct can be inferred from its repeated refusal to fully comply with defendant's discovery requests, even after agreeing to do so by so-ordered stipulation and being directed to do so by court orders, and the absence of a reasonable excuse for its failure to comply ( see Tos v. Jackson Hgts. Care Ctr., LLC, 91 A.D.3d 943 [2012];Rowell v. Joyce, 10 A.D.3d 601 [2004] ). We note that plaintiff's motion to stay discovery was untimely. Accordingly, the order, insofar as appealed from, is affirmed.