Smookler v. Dicerbo

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Docket Number

2017-02168

Attorney(S)

Jonathan Fisher, New York, NY, for appellant. Lynn M. Dicerbo, Mechanicville, NY, respondent pro se.

Judges

Reinaldo E. Rivera

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Smart Summary

Factual and Procedural Background

The plaintiff, William N. Smookler, commenced an action to recover damages for breach of contract, including attorney's fees allegedly agreed upon by the defendant, Lynn M. Dicerbo, pursuant to a settlement agreement following their divorce. The defendant asserted counterclaims including breach of contract and breach of fiduciary duty, and served interrogatories on the plaintiff. The defendant moved multiple times to strike the complaint under CPLR 3126 due to the plaintiff's failure to provide discovery. The Supreme Court directed the plaintiff on two occasions to respond in writing under oath as required by CPLR 3133. Ultimately, the court granted the defendant's motion to strike the complaint for willful failure to provide discovery. The plaintiff appeals from this order.

Legal Issues Presented

Whether the Supreme Court properly exercised its discretion in granting the defendant's motion pursuant to CPLR 3126 to strike the complaint for willful failure to provide discovery.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Quinones v Long Is. Jewish Med. Ctr., 90 AD3d 632, 632-633	Discretion of court in imposing sanctions under CPLR 3126; striking pleadings for willful failure to comply with discovery	Supported the court's discretion to strike the complaint due to willful failure to provide discovery
Lotardo v Lotardo, 31 AD3d 504, 505	Discretion in imposing discovery sanctions under CPLR 3126	Referenced as authority for court’s discretion in discovery sanctions
Devito v J & J Towing, Inc., 17 AD3d 624, 625	Striking pleadings appropriate where failure to comply with discovery is willful and contumacious	Applied to justify striking complaint for willful discovery failures
Montemurro v Memorial Sloan-Kettering Cancer Ctr., 94 AD3d 1066, 1066-1067	Willful or contumacious conduct inferred from repeated failure to comply with discovery orders without reasonable excuse	Used to infer plaintiff’s willful failure to comply with court discovery directives
Tos v Jackson Hgts. Care Ctr., LLC, 91 AD3d 943, 943-944	Inference of willful or contumacious conduct from repeated failure to respond to discovery demands	Supported finding of plaintiff’s willful noncompliance with discovery
Howe v Jeremiah, 51 AD3d 975, 975-976	Sanctions for willful failure to comply with discovery; striking pleadings	Reinforced the appropriateness of striking complaint for willful noncompliance

Court's Reasoning and Analysis

The court analyzed the plaintiff's repeated failure to comply with discovery demands and court orders as willful and contumacious conduct under CPLR 3126(3). The court noted that the plaintiff was directed multiple times to provide written responses under oath to the defendant's interrogatories but failed to do so without providing any reasonable excuse. This pattern of noncompliance justified the severe sanction of striking the complaint. The court relied on established precedents which hold that such a sanction is appropriate when a party's failure to comply with discovery is willful and without adequate explanation. The court found that the exercise of discretion in granting the defendant's motion to strike was proper and supported by the record.

Holding and Implications

The order of the Supreme Court, Duchess County, dated January 19, 2017, granting the defendant's motion to strike the complaint pursuant to CPLR 3126(3) for willful failure to provide discovery, is affirmed with costs.

This decision directly results in dismissal of the plaintiff’s complaint due to discovery misconduct. The opinion does not establish new precedent but applies well-settled principles concerning discovery sanctions and the court’s discretion under CPLR 3126.

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William N. Smookler, appellant, v. Lynn M. Dicerbo, etc., respondent.

REINALDO E. RIVERA, J.P.

JOSEPH J. MALTESE BETSY BARROS LINDA CHRISTOPHER, JJ. (Index No. 5833/10)

Jonathan Fisher, New York, NY, for appellant.

Lynn M. Dicerbo, Mechanicville, NY, respondent pro se.

DECISION & ORDER

In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Duchess County (James D. Pagones, J.), dated January 19, 2017. The order granted the defendant's motion pursuant to CPLR 3126 to strike the complaint for willful failure to provide discovery.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for breach of contract, seeking, inter alia, attorney's fees that the defendant allegedly agreed to pay him pursuant to the parties' settlement agreement following their divorce. The defendant asserted counterclaims sounding in, inter alia, breach of contract and breach of fiduciary duty, and served interrogatories on the plaintiff. The defendant subsequently moved on multiple occasions to strike the complaint pursuant to CPLR 3126. On two occasions, the Supreme Court directed the plaintiff to provide responses in writing under oath, with each response preceded by the question to which it responded, as required pursuant to CPLR 3133. By an order dated January 19, 2017, the court granted the defendant's motion pursuant to CPLR 3126(3) to strike the complaint for willful failure to provide discovery. The plaintiff appeals.

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who refuses to comply with court-ordered discovery is a matter within the discretion of the court (see Quinones v Long Is. Jewish Med. Ctr., 90 AD3d 632, 632-633; Lotardo v Lotardo, 31 AD3d 504, 505). The striking of a pleading may be appropriate as a sanction where there is a clear showing that the failure to comply with discovery demands is willful and contumacious (see CPLR 3126[3]; Quinones v Long Is. Jewish Med. Ctr., 90 AD3d at 632-633; Devito v J & J Towing, Inc., 17 AD3d 624, 625). 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 any reasonable excuse for these failures (see Montemurro v Memorial Sloan-Kettering Cancer Ctr., 94 AD3d 1066, 1066; Tos v Jackson Hgts. Care Ctr., LLC, 91 AD3d 943, 943-944).

Here, the Supreme Court providently exercised its discretion in granting the defendant's motion pursuant to CPLR 3126 to strike the complaint (see Montemurro v Memorial Sloan-Kettering Cancer Ctr., 94 AD3d at 1066-1067; Quinones v Long Is. Jewish Med. Ctr., 90 AD3d at 632-633; Howe v Jeremiah, 51 AD3d 975, 975-976; Devito v J & J Towing, Inc., 17 AD3d 624). The willful or contumacious character of the plaintiff's conduct could be properly inferred from his repeated failures to comply with the court's directives, coupled with his lack of an adequate explanation for the failure to comply (see Montemurro v Memorial Sloan-Kettering Cancer Ctr., 94 AD3d at 1066; Tos v Jackson Hgts. Care Ctr., LLC, 91 AD3d at 943-944; Quinones v Long Is. Jewish Med. Ctr., 90 AD3d at 632-633; Howe v Jeremiah, 51 AD3d at 975-976).

RIVERA, J.P., MALTESE, BARROS and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court