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Frias v. Fortini

Appellate Division of the Supreme Court of New York, Second Department
Jun 9, 1997
240 A.D.2d 467 (N.Y. App. Div. 1997)

Summary

In Frias v. Fortini, 240 A.D.2d 467 (1997) the Court affirmed the Supreme Court's dismissal of plaintiff's complaint for failure to comply with two discovery orders to provide medical authorizations in a personal injury action.

Summary of this case from Litvinskiy v. May Entertainment Group, Inc.

Opinion

June 9, 1997

Appeal from the Supreme Court, Kings County (Golden, J.).


Ordered that the judgment is affirmed, with costs.

Although the drastic remedy of striking a pleading pursuant to CPLR 3126 for failure to comply with court-ordered disclosure should be granted only where the conduct of the resisting party is shown to be willful, contumacious, or in bad faith, it is equally well settled that where a party disobeys a court order and by his or her conduct frustrates the disclosure scheme provided by the CPLR, dismissal of a pleading is within the broad discretion of the trial court (see, Zletz v. Wetanson, 67 N.Y.2d 711, 713; Brady v. County of Nassau, 234 A.D.2d 408; Eagle Star Ins. Co. v. Behar, 207 A.D.2d 326). Furthermore, the absence of an excuse for the delay in responding to discovery demands, and the delaying party's failure to object to the demands, supports an inference that the failure to comply was willful (see, Brady v. County of Nassau, supra; Mills v. Ducille, 170 A.D.2d 657). Here, the plaintiffs failed to provide a reasonable excuse for the failure to provide medical authorizations in full compliance with the defendants' July 1993 discovery demand, despite the issuance of two prior court orders directing compliance with the outstanding demand. Under these circumstances, the Supreme Court did not improvidently exercise its discretion in dismissing the complaint (see, Brady v. County of Nassau, supra).

Rosenblatt, J.P., Copertino, Pizzuto, Krausman and Florio, JJ., concur.


Summaries of

Frias v. Fortini

Appellate Division of the Supreme Court of New York, Second Department
Jun 9, 1997
240 A.D.2d 467 (N.Y. App. Div. 1997)

In Frias v. Fortini, 240 A.D.2d 467 (1997) the Court affirmed the Supreme Court's dismissal of plaintiff's complaint for failure to comply with two discovery orders to provide medical authorizations in a personal injury action.

Summary of this case from Litvinskiy v. May Entertainment Group, Inc.
Case details for

Frias v. Fortini

Case Details

Full title:PRESILDA FRIAS et al., Appellants, v. ADAM E. FORTINI et al., Respondents

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 9, 1997

Citations

240 A.D.2d 467 (N.Y. App. Div. 1997)
658 N.Y.S.2d 435

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