The following electronically filed papers were read upon this motion: Notice of Motion/Order to Show Cause 28-40 Answering Papers 41-49 Reply 50 Decision/Order The plaintiffs in this matter move the Court for an Order striking the defendants’ answer and rendering a default judgment against them, or in the alternative, precluding the defendants from producing the February 8, 2021 Highway Work Order (HWO), as well as any testimony referencing said document or the contents thereof at a trial or in support of/opposition to any motions made in this action. Plaintiffs bring this application pursuant to CPLR §§3126 (2) and (3). Defendants oppose the requested relief. The incident giving rise to this action occurred on February 7, 2021, on a snowy Sunday morning, when defendants’ snowplow made contact with plaintiff Daniel Dickmann. The document in question bears the heading “Town of Babylon Highway Work Order” that is described by the defendants in their opposition papers as “the print out of a log of a telephonic complaint made to the Town’s Citizen’s Services Department by plaintiff Daniel Dickmann on February 8, 2021 concerning the alleged accident of February 7, 2021, which plaintiffs characterize as a ‘Highway Work Order.’” The Court notes that this item of discovery is entitled “Town of Babylon Highway Work Order,” so it is not a matter of the plaintiffs characterizing the item as anything other than what the defendants themselves have labeled it. The HWO states the site of the alleged incident, the injured plaintiff’s name, address, and telephone number and a description of the telephone call that reads as follows: 2/8/2021 H/O CALLED TO REPORT PERSONAL INJURY DUE TO A TOB PLOW TRUCK HITTING HIM AS HE CROSSED THE ROAD. AS PER CALLER HE WAS CROSSING THE ROAD TO ASSIST HIS NEIGHBOR WITH SNOW REMOVAL WHEN THE DOG RAN TO THE EDGE OF THE ROAD. AS HE WENT TO PICK UP THE DOG IT JUMPED IN THE ROAD AS HE CAUGHT IT AND WAS HIT AND TOSSED BY THE PLOW. CALLER STATES TO HAVE SPOKEN TO THE CLERKS OFFICE TO FILE A NOTICE OF CLAIM FOR DAMAGES. JL. It is undisputed that despite plaintiffs’ combined demands dated November 29, 2021 requesting, inter alia, accident reports and any and all statements of the plaintiff, the defendants responded on January 10, 2022 that they were not in possession of any of the requested materials except for the General Municipal Law §50-h testimony of Daniel Dickman taken on September 7, 2021. Following that response by defendants, an Alternative Dispute Resolution/Differentiated Case Management (ADR/DCM) Order was issued by the Hon. Paul J. Baisley, Jr, J.S.C. on February 25, 2022 directing that statements of adverse parties be exchanged within twenty (20) days of the date of that Order. The defendants did not respond to the ADR/DCM Order. The injured plaintiff’s deposition was held on November 1, 2022. It is undisputed that the HWO was not disclosed to the plaintiffs until on or about January 27, 2023 in response to a Preliminary Conference Order issued by this Court on December 13, 2022. Defendants’ opposition to the instant motion fails to provide any explanation whatsoever for failing to provide the HWO in their January 10, 2022 response to the plaintiffs’ combined demands, or any explanation for having failed to submit any response to the ADR/DCM Order. The nature and degree of the penalty to be imposed under CPLR §3126 for a discovery violation is addressed to the trial court’s sound discretion (Chowdhury v. Hudson Valley Limousine Service, LLC, 162 AD3d 845, 846 [2d Dept 2018]). It is settled that the “striking of a party’s pleading is a drastic remedy only warranted where there has been a clear showing that the failure to comply with discovery demands was willful and contumacious” (see, Pinto v. Tenenbaum, 105 AD3d 930, 931 [2d Dept 2013]; John Hancock Life Ins. Co. of New York v. Triangulo Real Estate Corp., 102 AD3d 656, 657 [2d Dept 2013]). A trial court has broad discretion to oversee discovery (Liang v. Yi Jing Tan, 98 AD3d 653, 654 [2d Dept 2012]; Callaghan v. Curtis, 82 AD3d 818 [2d Dept 2011]), and the determination whether to strike a pleading similarly lies within the sound discretion of the trial court (Silberstein v. Maimonides Medical Center, 109 AD3d 812 [2d Dept 2013]; H.R. Prince, Inc. v. Elite Environmental System, Inc., 107 AD3d 850, 851 [2d Dept 2013]; John Hancock Life Ins. Co. of N.Y. v. Triangulo Real Estate Corp., supra; see also, Gibbs v. St. Barnabas Hosp., 16 NY3d 74, 79-80 [2010]; CPLR §3126[3]). Strong public policy, however, favors the resolution of cases on the merits (Friedman, Harfenist, Langer & Kraut v. Richard Bruce Rosenthal, 79 AD3d 798, 800 [2d Dept 2010]). Here, no trial certification order has yet been issued; therefore, plaintiffs have not filed their note of issue. Furthermore, disclosure was made, albeit belatedly. Even in a case heavily relied upon by the plaintiffs in support of their motion, where the court found that defendants engaged in an ongoing course of delay and obfuscation in exchanging discovery, and belatedly made full disclosure after the filing of the note of issue, the appropriate sanction was to preclude certain testimony and evidence, not strike the defendants” answer (Arpino v. F.J.F. & Sons Electric Co., Inc., 102 AD3d 201 [2d Dept 2012]). Accordingly, the plaintiffs’ request to strike the defendants’ answer and enter a default judgment against them is denied; however, the sanction of preclusion is warranted. In this case, it appears that the Town defendants have a system of receiving telephone complaints from individuals through a Town Citizen’s Services Department and that they make a record of those complaints. Thus, it is reasonable to conclude that it is the Town’s usual practice to take and make/maintain records of complaints. Since the Town obviously made a record of the injured plaintiff’s telephonic complaint on the day that the plaintiff called, which was the day after the subject incident, but did not turn that record over for almost two years, claimed that it was not in possession of any statements made by the injured plaintiff, failed to comply with a court order, only disclosed it after the injured plaintiff submitted to the 50-h hearing and deposition, and offers no excuse or explanation for having failed to exchange it timely, this Court finds the Town willfully and contumaciously failed to disclose the HWO, warranting the sanction of preclusion as outlined herein above (Romano v. Persky, 117 AD3d 814 [2d Dept 2014]; see also Patino v. Carlyle Three, LLC, 148 AD3d 1175, 1177 [2d Dept 2017]). The foregoing constitutes the Decision and Order of this Court. Dated: April 13, 2023
