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Martel v. Chupka

26 A.D.3d 474 Court N.Y. App. Div. Decision date 2006-02-28 English

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p. 474
Piera Martel et al., Appellants, v Lisa M. Chupka et al., Respondents.
[809 NYS2d 469]

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Lifson, J.), entered December 2, 2004, which, upon an order of the same court dated October 8, 2003, granting the defendants’ motion pursuant to CPLR 3126 to dismiss the complaint, is in favor of the defendants and against them dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

The plaintiffs failed to respond to the defendants’ discovery demands for almost one year, violated a so-ordered stipulation directing that their depositions be conducted on a certain date, and violated a court order which, inter alia, warned them that the complaint would be dismissed if they did not serve a bill of particulars within 10 days of service of the order upon them. The plaintiffs made no attempt to provide discovery responses until after the defendants’ second motion to dismiss the complaint pursuant to CPLR 3126.

The plaintiffs’ wilfulness can be inferred from their repeated

p. 475
disregard for the discovery demands and court orders (see Mendez v City of New York, 7 AD3d 766 , 767 [2004]). In opposition to the present motion, the plaintiffs failed to present any excuse for their noncompliance. Under the circumstances, the Supreme Court providently exercised its discretion in granting the defendants’ motion pursuant to CPLR 3126 to dismiss the complaint (see Royal Caterers, LLC v Marine Midland, 8 AD3d 549 [2004]; Alto v Gilman Mgt. Corp., 7 AD3d 650 [2004]). Florio, J.P., Schmidt, Spolzino and Lunn, JJ., concur.

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