Ordonez v. Guerra

—In an action to recover damages [326] for negligence and medical malpractice, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Levine, J.), dated September 26, 2000, as granted those branches of the respective motions of the defendants Lutheran Medical Center and N. Bartha, and Roger Ramos, which were to dismiss the complaint insofar as asserted against them pursuant to CPLR 3126 for failure to provide disclosure. Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs. It is well settled that the nature and degree of the penalty to be imposed pursuant to CPLR 3126 for a party’s failure to disclose lies within the sound discretion of the trial court (see Lavi v Lavi, 256 AD2d 602; Kubacka v Town of N. Hempstead, 240 AD2d 374). The plaintiff engaged in a pattern of conduct over a period of time which evidenced an intent to willfully and contumaciously obstruct and delay the progress of disclosure. The plaintiffs resistance to disclosure commenced at the time of the first preliminary conference so ordered stipulation and continued throughout the next two years. Indeed, the plaintiffs recalcitrance in providing discovery necessitated the defendants making no less than three motions to dismiss pursuant to CPLR 3126 to compel discovery compliance. The second of those motions produced a conditional order of dismissal dated March 14, 2000, which directed the plaintiff to provide “outstanding authorizations.” The third CPLR 3126 dismissal motion, which resulted in an order dated September 26, 2000, dismissing the complaint, was based upon the plaintiffs failure to comply with various demands for disclosure. In the order dated September 26, 2000, the court stated that “plaintiff failed to comply with [the court’s] prior order dated March 14, 2000, which was self-executing.” However, the dismissal order stemmed from a motion which was based upon the plaintiffs continued failure to comply with various discovery demands, and not just the authorizations compelled by the order dated March 14, 2000. Moreover, the order of dismissal dated September 26, 2000, specifically stated that it was based, inter alia, “upon review of the record.” Thus, it is clear that the March 14, 2000, conditional dismissal order was merely the catalyst for the defendants’ final dismissal motion wherein the court was presented with a complete record of the plaintiffs entire history of failing to provide full and complete disclosure, despite two discovery orders, preliminary and compliance conferences, and numerous demands. Accordingly, [327] since the plaintiff engaged in a pattern of “willful disobedience of a specific notice for discovery” (American Reliance Ins. Co. v National Gen. Ins. Co., 174 AD2d 591, 592; see also Rafman v Indemnity Ins. Co. of N. Am., 209 AD2d 290), dismissal under CPLR 3126 was warranted. Therefore, contrary to the position of our dissenting colleague, although the plaintiff provided the authorizations required by the order dated March 14, 2000, the subsequent dismissal of the complaint was proper. Upon the defendants’ third CPLR 3126 motion, the court had the discretion to make whatever order it deemed “just,” including dismissal of the complaint (CPLR 3126; see Cutolo v Khalife, 242 AD2d 661; Porreco v Selway, 225 AD2d 752; DeGennaro v Robinson Textiles, 224 AD2d 574). Santucci, J.P., S. Miller and Krausman, JJ., concur.