Consolidated appeal from orders of the Civil Court of the City of New York, Kings County dated, respectively, June 5, 2007 (John H. Stanley, J.), November 5, 2007 (Cheryl J. Gonzalez, J.) and May 28, 2008 (Cheryl J. Gonzalez, J.). The order dated June 5, 2007 denied landlord's cross motion to preclude occupant from offering any testimony at trial. The order dated November 5, 2007, insofar as appealed from as limited by the brief, granted landlord's motion to strike the answer or, in the alternative, preclude occupant from offering any testimony at trial, only to the extent of precluding occupant from offering testimony at trial with regard to the documents requested which he had failed to produce. The order dated May 28, 2008, insofar as appealed from, upon granting landlord's motion for leave to reargue, adhered to the prior order dated November 5, 2007.

Order dated June 5, 2007 affirmed without costs.

Appeal from order dated November 5, 2007 dismissed as said order was superseded by the order dated May 28, 2008.

Order dated May 28, 2008, insofar as appealed from, modified by providing that, upon reargument, landlord's motion to strike occupant's answer or, in the alternative, preclude occupant from offering any testimony at trial is granted to the extent of precluding occupant from offering any testimony at trial; as so modified, affirmed without costs. [*2]

In this licensee summary proceeding, landlord moved for leave to conduct pre-trial discovery. By order dated February 28, 2007, landlord's motion was granted and occupant was ordered to appear for a deposition and to produce the documents demanded by landlord in its discovery request. After occupant failed to comply, occupant moved to "restore the proceeding to the calendar," and landlord cross-moved to strike occupant's answer or, in the alternative, preclude occupant from testifying at trial. Thereafter, occupant's attorney was relieved as counsel, and occupant proceeded pro se. By order dated June 5, 2007, the Civil Court (John H. Stanley, J.) denied landlord's cross motion. The court's decision stated that the court was giving occupant one final opportunity to comply with the discovery order and that "[i]f [occupant] fail[ed] to comply with [its] order, upon motion of petitioner and consideration of the facts presented, th[e] court may preclude occupant from presenting any testimony at trial pertaining to the requested information" (emphasis added).

On July 2, 2007, landlord once again moved to, inter alia, strike occupant's answer or, in the alternative, preclude him from testifying at trial. While this motion was pending, occupant partially complied with the discovery order by providing some of the documents requested by landlord. Thereafter, by order dated November 5, 2007, the Civil Court (Cheryl J. Gonzalez, J.) granted landlord's motion only to the extent of precluding tenant from testifying at trial with regard to the documents requested which tenant had failed to produce. The court noted in its decision that it was imposing only that sanction because it was bound by the doctrine of law of the case due to the above-quoted language in the order dated June 5, 2007. Landlord subsequently moved for leave to reargue. By order dated May 28, 2008, the Civil Court (Cheryl J. Gonzalez, J.) granted landlord leave to reargue, and, upon reargument, adhered to the November 5, 2007 order.

In the circumstances presented, the Civil Court's June 5, 2007 denial of landlord's cross motion did not constitute an improvident exercise of discretion, and said order is affirmed.

Contrary to the Civil Court's finding, the language in the June 5, 2007 order was not a determination of an issue that could constitute law of the case (see Brown v State of New York, 250 AD2d 314, 320 [1998]) but was a mere dictum informing occupant what a possible sanction might be for his failure to comply with the discovery order. In any event, the doctrine of law of the case does not apply to discovery orders (see e.g. Sullivan v Nigro, 48 AD3d 454 [2008]; Sunshine Care Corp. v Novick, 19 Misc 3d 143[A], 2008 NY Slip Op 51101[U] [App Term, 9th & 10th Jud Dists 2008]). It is also noted that this court, as an appellate court, is not bound by the law of the case doctrine (see Latture v Smith, 304 AD2d 534 [2003]; see also Sunshine Care Corp.,19 Misc 3d 143[A], 2008 NY Slip Op 51101[U]). Therefore, the Civil Court improperly found that the June 5, 2007 order was law of the case and that the only penalty which could be imposed for occupant's failure to comply with the discovery order was preclusion of occupant's testimony at trial with regard to the documents which he had failed to
produce.

"Generally, 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. A determination to impose sanctions for conduct which frustrates the disclosure scheme of the CPLR should not be disturbed absent an improvident exercise of discretion . . . Although actions should be resolved on the merits whenever possible, where the [*3]conduct of the resisting party is shown to be willful and contumacious, the striking of a pleading is warranted . . . Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply" (Savin v Brooklyn Mar. Park Dev. Corp., 61 AD3d 954 [2009] [internal quotation marks and citations omitted]).

Since occupant's conduct in not complying with the discovery orders appears to have been willful and contumacious, we find that the appropriate remedy is to preclude occupant from testifying at trial. Accordingly, we modify the May 28, 2008 order, insofar as appealed from, to provide that, upon reargument, landlord's motion to strike occupant's answer or, in the alternative, preclude occupant from offering any testimony at trial is granted to the extent of precluding occupant from offering any testimony at trial.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: August 10, 2009