Schwartz v. Suebsanguan

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Steinhardt, J.), dated November 5, 2003, as granted the motion of the defendants Gordon D. Dutchman, Metropolitan Jewish Geriatric Nursing Home Company, Inc., Dr. Cicora, and Maimonides Medical Center, to dismiss the complaint insofar as 566 asserted against them pursuant to CPLR 3126, granted that branch of the separate motion of the defendant Peninsula Hospital Center which was to dismiss the complaint insofar as asserted against it pursuant to CPLR 3126, and denied his cross motion, in effect, for summary judgment on the issue of liability. Ordered that the order is affirmed insofar as appealed from, with costs to the respondents appearing separately and filing separate briefs. The Supreme Court providently exercised its discretion in dismissing the complaint. Although dismissal of a complaint pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party’s conduct is shown to be willful and contumacious (see Rowell v Joyce, 10 AD3d 601 [2004]; Beneficial Mtge. Corp. v Lawrence, 5 AD3d 339 [2004]; Frias v Fortini, 240 AD2d 467 [1997]). The plaintiffs willful and contumacious conduct can be inferred from his repeated failure to adequately respond to discovery demands and court directives to comply with the demands, and his inadequate explanations for his failures to comply (see Rowell v Joyce, supra; Beneficial Mtge. Corp. v Lawrence, supra; Ranfort v Peak Tours, 250 AD2d 747 [1998]). The plaintiffs remaining contentions either are improperly raised for the first time on appeal or are without merit. H. Miller, J.P, S. Miller, Goldstein, Mastro and Lifson, JJ., concur.