SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
April 5, 2011
JOHN CHONG, RESPONDENT,
-AND- OK JIN CHONG,
SANG SU KIM AND IN SOON KIM,
Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered June 24, 2009.
Chong v Sang Su Kim
Decided on April 5, 2011
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT:PESCE, P.J., WESTON and RIOS, JJ
The order denied defendants' motion for summary judgment dismissing the first cause of action.
ORDERED that the order is reversed, without costs, and defendants' motion for summary judgment dismissing the first cause of action is granted.
Insofar as is relevant to this appeal, the complaint, as a first cause of action, seeks to recover for personal injuries allegedly sustained by plaintiff John Chong (respondent) in a motor vehicle accident on or about November 13, 2006. Defendants moved, pursuant to CPLR 3126, for an order dismissing this cause of action or, in the alternative, precluding respondent from offering evidence at trial with respect to his alleged injuries on the grounds that he had failed to submit to a physical examination and had failed to provide requested discovery. In opposition to the motion, respondent submitted a response to defendants' demand for discovery. In an order entered August 4, 2008, the Civil Court noted the submission and directed respondent to comply with all outstanding discovery requests within 60 days of the entry of the order or be precluded from offering testimony at trial with respect to his injuries, as set forth in the verified bill of particulars.
Defendants subsequently moved, pursuant to CPLR 3126 and 3212 (a), for summary judgment dismissing the first cause of action on the ground that respondent would be unable to prove a prima facie case at trial under Insurance Law § 5102 (d), since he was precluded from testifying with respect to his alleged injuries, inasmuch as he had failed to comply with discovery demands. Respondent opposed the motion. He argued that all discovery had been completed, annexing a document, denominated "Response to Order," and dated "February 30, 2008" [sic], to which he attached the demanded discovery items, and stated that he had appeared for independent medical examinations. The affidavit of service for the "Response to Order" stated that the document had been served by mail on "February 30, 2008" [sic] on defendants' attorneys. By order entered June 24, 2009, the Civil Court denied defendants' motion to dismiss the first cause of action, finding that respondent had submitted evidence that the outstanding discovery had been provided. This appeal by defendants ensued.
The dismissal of an action or any part thereof pursuant to CPLR 3126 (3) for failure to comply with court-ordered disclosure is a drastic remedy, and a motion seeking such dismissal should be granted only where the conduct of the nonmoving party is shown to be willful, contumacious, or in bad faith (see A.F.C. Enters., Inc. v New York City School Constr. Auth., 33 AD3d 737 ; Byrne v City of New York, 301 AD2d 489 ). In the present case, contrary to the determination of the Civil Court, there is no evidence that respondent timely provided the ordered discovery. Defendants' ability to defend against respondent's claims was prejudiced by respondent's failure to timely produce the requested documents (see Collins v Guerra, 234 AD2d 411 ). Under the circumstances, dismissal of the first cause of action of the complaint pursuant to CPLR 3126 (3) is warranted (see Kaplan v Elkind, 208 AD2d 683 ). Accordingly, the order is reversed and defendants' motion for summary judgment dismissing the first cause of action is granted.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 05, 2011
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