Submitted - February 13, 2018
Mendolia & Stenz (Picciano & Scahill, P.C., Bethpage,
NY [Andrea E. Ferucci], of counsel), for appellant.
Ahmuty, Demers & McManus, Albertson, NY (Nicholas M.
Cardascia and Glenn A. Kaminska of counsel), for
C. BALKIN, J.P. LEONARD B. AUSTIN SANDRA L. SGROI VALERIE
BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to recover damages for personal injuries, etc., the
defendant Derek A. Koonin appeals from an order of the
Supreme Court, Queens County (Robert J. McDonald, J.),
entered March 8, 2017. The order, insofar as appealed from,
granted that branch of the motion of the defendants Hudson
Valley Limousine Service, LLC, and Athanasios K. Roditis, and
that branch of the plaintiffs' cross motion, which were
pursuant to CPLR 3126 to strike the answer of the defendant
Derek A. Koonin.
that the order is reversed insofar as appealed from, on the
facts and in the exercise of discretion, without costs or
disbursements, that branch of the motion of the defendants
Hudson Valley Limousine Service, LLC, and Athanasios K.
Roditis, and that branch of the plaintiffs' cross motion,
which were pursuant to CPLR 3126 to strike the answer of the
defendant Derek A. Koonin are denied.
complaint alleges that on April 13, 2015, Ahad Chowdhury
(hereinafter the injured plaintiff), while riding his
bicycle, was injured in an accident involving a vehicle owned
by the defendant Hudson Valley Limousine Service, LLC
(hereinafter Hudson Valley Limo), and operated by the
defendant Athanasios K. Roditis, and another vehicle, which
was owned and operated by the defendant Derek A. Koonin. The
injured plaintiff, and his wife suing derivatively, commenced
this action against Hudson Valley Limo, Roditis, Koonin, and
others to recover damages, inter alia, for personal injuries.
November 2016, Hudson Valley Limo and Roditis moved pursuant
to CPLR 3126 to strike Koonin's answer, to preclude him
from testifying at trial, and/or to preclude him for offering
any evidence at trial after he failed to appear for an
examination before trial (hereinafter the EBT). The EBT had
been scheduled four different times pursuant to a preliminary
conference order entered September 17, 2015, a compliance
conference order entered December 14, 2015, and so-ordered
stipulations entered March 29, 2016, and July 14, 2016. The
plaintiffs cross-moved, inter alia, for the same relief. In
opposition to the motion and the cross motion, Koonin's
attorney submitted an affirmation in which he stated that
good-faith efforts, including hiring an investigator, had
been employed to make contact with Koonin but that such
efforts had been unsuccessful. The Supreme Court, inter alia,
granted those branches of the motion and cross motion which
were to strike Koonin's answer.
nature and degree of a penalty to be imposed under CPLR 3126
for discovery violations is addressed to the court's
discretion'' (Crupi v Rashid, 157 A.D.3d
858, 859; see Dimoulas v Roca, 120 A.D.3d 1293,
1295; Arpino v F.J.F. & Sons Elec., Co., Inc.,
102 A.D.3d 201, 210; Zakhidov v Boulevard Tenants
Corp., 96 A.D.3d 737, 738). "The general rule is
that the court will impose a sanction commensurate with the
particular disobedience it is designed to punish and go no
further than that" (Crupi v Rashid, 157 A.D.3d
at 859; see Zakhidov v Boulevard Tenants Corp., 96
A.D.3d at 739; Patrick M. Connors, Practice Commentaries,
McKinney's Cons Laws of NY, Book 7B, C3126:8). This Court
is vested with corresponding power to substitute its own
discretion for that of the motion court, even in the absence
of abuse (see Those Certain Underwriters at Lloyds,
London v Occidental Gems, Inc., 11 N.Y.3d 843, 845;
Household Fin. Realty Corp. of NY v Cioppa, 153
A.D.3d 908, 910; Lewis v John, 87 A.D.3d 564, 565).
light of Koonin's failure to comply with multiple court
orders and so-ordered stipulations directing him to appear
for the EBT, the Supreme Court properly concluded that Koonin
engaged in willful and contumacious conduct (see Riccuiti
v Consumer Prod. Servs., LLC, 71 A.D.3d 754;
Carabello v Luna, 49 A.D.3d 679, 680). However,
under the circumstances, it was an improvident exercise of
discretion to grant those branches of the motion and cross
motion which were to strike Koonin's answer in light of
the fact that the court also granted those branches of the
motion and cross motion which were to preclude Koonin from
offering any evidence at the time of trial (see e.g.
Hasan v 18-24 Luquer St. Realty, LLC, 144 A.D.3d 631,
633; Piatek v Oak Dr. Enters., Inc., 129 A.D.3d 811,
light of our determination, we need not consider ...