Wilson v. West Hempstead Generals Football Club, Inc.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Alpert, J.), dated March 19, 1999, which granted the defendants’ respective motions pursuant to CPLR 3126 (3) to dismiss the complaint insofar as asserted against them based on the plaintiffs’ failure to comply with court-ordered discovery. Ordered that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs. The drastic remedy of dismissing a complaint pursuant to CPLR 3126 (3) for a plaintiffs failure to comply with court-ordered discovery should be granted only where the conduct is shown to be willful, contumacious, or in bad faith. Where a plaintiff disobeys a court order and by his or her conduct frustrates the disclosure scheme provided by the CPLR, dismissal of the complaint is within the broad discretion of the Supreme Court (see, Zletz v Wetanson, 67 NY2d 711; see also, Kihl v Pfeffer, 94 NY2d 118; Brady v County of Nassau, 234 AD2d 408). Here, the plaintiffs’ willful and contumacious conduct can be inferred from their failure to comply with the numerous court orders directing disclosure or to offer a reasonable excuse for their lack of compliance (see, Polanco v Duran, 278 AD2d 397; Birch Hill Farm v Reed, 272 AD2d 282; Brady v County of Nassau, supra). As the plaintiffs frustrated the disclosure scheme provided by the CPLR, the Supreme Court providently exercised its discretion in granting the defendants’ respective motions to dismiss the complaint insofar as asserted against them. Altman, J. P., Florio, Schmidt and Cozier, JJ., concur.