Kimmel v. State

—Order unanimously modified in the exercise of discretion and as modified affirmed without costs in accordance with the following Memorandum: Plaintiffs commenced this action against the State of New York, its Division of State Police, and five State Police Officers, alleging that defendants subjected plaintiff Betty L. Kimmel, a former State Trooper, to various acts of sexual discrimination, sexual harassment and retaliation culminating in an incident of assault. On a prior appeal, we held that various nonappealed orders of Supreme Court bound defendants to comply with plaintiffs’ 58-item demand for discovery of documents, including State Police personnel records, and precluded defendants from relitigating the proper scope of document discovery and the applicability of Civil Rights Law § 50-a (Kimmel v State of New York [appeal No. 1], 261 AD2d 843 ). We noted “our strong disapproval of the obstructionist and delaying tactics carried out by defendants and tolerated by the court” (Kimmel v State of New York, supra, at 845 ). We further noted that the action had been commenced four years earlier but was still in the initial stages of discovery, and we urged the court to move the matter expeditiously. Accordingly, we directed defendants to comply with plaintiffs’ discovery notice and the prior orders in the case.

Subsequently, by order entered July 27, 1999, Supreme Court directed that defendants comply with our May 7, 1999 order within 30 days by turning over “ ‘all documents identified in plaintiffs’ original discovery request’ ”; that defendants be precluded “ ‘from again raising Civil Rights Law § 50-a as an obstacle to disclosure’ ”; and that their answers be struck and

The nature and degree of the penalty to be imposed on a CPLR 3126 motion lies within the sound discretion of the trial court and will be disturbed only if there has been an abuse or improvident exercise of discretion (see, Mohammed v 919 Park Place Owners Corp., 245 AD2d 351 , 352; Herrera v City of New York, 238 AD2d 475 , 476; Grabow v Blue Eyes, 123 AD2d 155 , 158; Associated Mut. Ins. Co. v Dyland Tavern, 105 AD2d 892 , 893). Since the inception of this action, defendants have completely resisted plaintiffs’ requests for disclosure, repeatedly ignored and disobeyed court orders, and consistently thwarted or delayed disclosure by raising various objections and privileges. We reject the contention of certain individual defendants that they are not responsible for their own persistent failure to turn over documents in their own possession because such failure was attributable to the State Attorney General’s Office, which was representing those defendants at the time. Since entry of our order directing defendants to comply with plaintiffs’ discovery notice, defendants have continued to engage in such obstructionist and dilatory tactics. Further, despite our unequivocal mandate, defendants have continually attempted to relitigate the scope of document discovery under Civil Rights Law § 50-a. Under the circumstances, the court did not abuse or improvidently exercise its discretion in entering a conditional order striking defendants’ answers in the event that defendants persist in disobeying our order (see, Green v Kolur, 234 AD2d 267 , 268; Parish Constr. Corp. v Franlo Tile, 215 AD2d 545 , 546; Soto v City of Long

The remaining appeals must be dismissed. Although characterized as motions to renew or to vacate, defendants’ motions involved no new matter not known to defendants at the time of the original motion, and thus in essence sought reargument (see, Federation of Puerto Rican Orgs. v Mateo, 235 AD2d 326 , 327, lv dismissed 90 NY2d 844 ; Klein v Mount Sinai Hosp., 121 AD2d 164 , 164-165), and no appeal lies from an order denying reargument (see, Empire Ins. Co. v Food City, 167 AD2d 983 , 984). Similarly, the appeals from the order entered October 8, 1999 must be dismissed on the grounds that no appeal lies from an order denying a motion to resettle the substantive portions of a prior order (see, Gifaldi v Dumont Co., 172 AD2d 1025 , 1026), nor from an order directing a hearing (and thus reserving decision) on an application (see, Cobb v Kittinger, 168 AD2d 923 ). (Appeals from Order of Supreme Court, Monroe County, Lunn, J. — Discovery.) Present — Green, J. P., Hayes, Scudder and Balio, JJ.