Kaplan v. Elkind

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Nicolai, J.), entered May 5, 1993, which granted the defendants’ motion to dismiss the action pursuant to CPLR 3126 (3). Ordered that the order is affirmed, with costs. The record demonstrates that the plaintiffs failed to fully comply with court orders directing full discovery, and offered inadequate excuses for their noncompliance. Moreover, even after the court ordered full compliance with the defendants’ discovery demands, the plaintiffs still delayed the production of certain items for several years after the order was issued. Under these circumstances, the Supreme Court properly concluded that plaintiffs’ conduct was willful and permissibly exercised its discretion in dismissing the plaintiffs’ complaint pursuant to CPLR 3126 (3) (see, Glasburgh v Port Auth., 193 AD2d 441; Wolfson v Nassau County Med. Ctr., 141 AD2d 815; Bigman v Dime Sav. Bank, 181 AD2d 648). Thompson, J. P., Sullivan, Friedmann and Krausman, JJ., concur.