Renelique v Lancer Ins. Co., 2016 NY Slip Op 51596(U)(App. Term 2d Dept. 2016)
(1) By order entered March 31, 2014, the Civil Court granted defendant’s unopposed motion and directed plaintiff to “provide discovery responses to outstanding discovery demands within 60 days.”
(2) When plaintiff’s time to respond had passed, defendant moved to dismiss the complaint, pursuant to CPLR 3126, on the ground that plaintiff had failed to comply with the March 31, 2014 order. On September 9, 2014, plaintiff served its opposition to the motion along with written responses to defendant’s discovery demands. Plaintiff appeals from an order of the Civil Court, entered December 11, 2014, which, among other things, granted defendant’s motion and dismissed the complaint.
(3) “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 AD3d 685 [2011]). In the case at bar, that plaintiff’s conduct was willful and contumacious can be inferred from its refusal to adequately comply with discovery requests, even after being directed to do so by court order, as well as from the absence of a reasonable excuse for its failure to comply”
The Plaintiff missed one order without any conditional language. Civil Court dismissed the complaint -which they wouldn’t even do in Federal Court – and the Appellate Term affirmed despite belated compliance.
Unless I am missing something, the Appellate Term plainly got this wrong.
Here is PI case from the Second Department (2 weeks subsequent) that required more than one ignored order:
Bruno v Flip Cab Corp., 2016 NY Slip Op 07617 (2d Dept. 2016)
“Here, Livoti twice failed to appear for depositions in violation of two court orders and never responded to a demand for a bill of particulars. Livoti’s failures to comply with court-ordered discovery coupled with her failure to provide any excuse therefor supports an inference that her conduct was willful and contumacious”
