It is sadly ironic when a legal malpractice case is dismissed (from plaintiff’s point of view) and even more so when it is dismissed for “willful and contumacious”discovery conduct (from everyone’s point of view).
Allstar Elecs., Inc. v DeLuca 2020 NY Slip Op 07018 [188 AD3d 1121]
November 25, 2020 Appellate Division, Second Department is an example.
“”The nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who refuses to comply with court-ordered discovery is a matter within the discretion of the court” (Smookler v Dicerbo, 166 AD3d 838, 839 ; see Pastore v Utilimaster Corp., 165 AD3d 685, 686 ; Quinones v Long Is. Jewish Med. Ctr., 90 AD3d 632 ). The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands or court-ordered discovery was the result of willful and contumacious conduct (see Ozeri v Ozeri, 135 AD3d 838, 839 ; McArthur v New York City Hous. Auth., 48 AD3d 431 ). “The willful and contumacious character of a party’s conduct can be inferred from the party’s repeated failure to respond to demands or to comply with discovery orders, and the absence of any reasonable excuse for these failures” (Tos v Jackson Hgts. Care Ctr., LLC, 91 AD3d 943, 943-944 ; see Smookler v Dicerbo, 166 AD3d at 839; Commisso v Orshan, 85 AD3d 845 ).
Here, contrary to the plaintiff’s contention, the willful and contumacious character of its conduct could properly be inferred from its repeated failures, without an adequate excuse, to timely respond to discovery demands and to comply with the Supreme Court’s orders to provide outstanding discovery and set a date for the plaintiff’s deposition (see Marino v Armogan, 179 AD3d 664, 666 ; Broccoli v Kohl’s Dept. Stores, Inc., 171 AD3d 846, 847-848 ; Smookler v Dicerbo, 166 AD3d at 839-840; Montemurro v Memorial Sloan-Kettering Cancer Ctr., 94 AD3d 1066, 1066-1067 ).”