The Second Judicial Department of the Supreme Court of the State of New York Appellate Division recently affirmed lower court decisions awarding summary judgment and dismissal of all claims in favor of a defendant snow removal contractor in a case venued in Nassau County Supreme Court.

Plaintiff claimed she was injured in two separate slip and fall accidents occurring at her condominium complex. She further claimed that the co-defendants—a building owner and a management company—had notice of a reoccurring ice condition on the premises due to issues with the gutters overflowing. According to plaintiff, the gutters were arranged in such a way that rainwater from the gutters would fall onto the walkway and freeze in the area where both of her falls occurred. As a result of the accidents, plaintiff alleged—among other injuries—multi-level intervertebral disc ruptures resulting in lumbar fusion surgery. Plaintiff brought a lawsuit against the owner of the premises, the management company, and the snow removal contractor.

During the course of discovery, the co-defendants failed to produce records demonstrating prior slip and fall accidents and lawsuits due to faulty gutters at the condominium complex. As a result, we filed a motion to strike co-defendants’ cross-claims for their willful and contumacious conduct as well as a motion for summary judgment to dismiss plaintiff’s claims.

In granting Rawle & Henderson LLP’s motions, the lower court found that (1) co-defendant owner and management company demonstrated willful and contumacious conduct requiring the striking of their cross-claims and (2) the defendant snow removal contractor did not owe any duty of care to plaintiff. Plaintiff and co-defendants appealed both decisions.

Co-defendants argued that the records demonstrating prior slip and fall accidents and lawsuits due to faulty gutters at the premises were not relevant because the prior accidents had occurred at different residences at the condominium complex. On appeal, Rawle & Henderson LLP successfully argued that the conduct of co-defendants, by not providing proper responses to our discovery demands for a period of nearly two years, demonstrated willful and contumacious conduct requiring the striking of their pleading. We argued that the relevancy of any records should have been addressed by the co-defendants in their responses to our discovery demands but were not.

The Second Department reaffirmed that while public policy favors the resolution of cases on the merits, when a party fails to comply with a court order, frustrating the disclosure scheme set forth in the New York Civil Practice and Law Rules, it is within the trial Court’s discretion to strike the pleadings or parts thereof as a sanction against such party. Striking a party’s pleading is justified where their failure to comply with discovery demands or orders is willful and contumacious.

Courts have held that 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 or a failure to comply with court-ordered discovery over an extended period of time.

In another recent decision, Espinal v. New York City Health & Hosps. Corp., the Appellate Division similarly held that “willful and contumacious conduct of the defendant can be inferred from its repeated failures, over an extended period of time and without an adequate explanation, to comply with the plaintiff’s post-deposition demands for the disclosure of certain work orders and the production of certain witnesses, including a witness with knowledge of the facts, as well as to comply with several orders mandating such discovery.” 115 A.D.3d 641, 981 N.Y.S.2d 569 (2d Dept. 2014).

Rawle & Henderson LLP also successfully argued that plaintiff could not bring a claim against the defendant snow removal contractor since (1) defendant did not launch an instrument of harm, (2) plaintiff did not detrimentally rely upon the snow removal contract, and (3) defendant did not entirely displace the property owner’s duty to maintain the premises.

Directly on point with the facts of the instant action, in Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138 (2002), the Court of Appeals held that “a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party.” As a general rule, a contractor does not owe a duty of care in tort to non-contracting third parties like plaintiff unless these parties can establish that at least one of the following three exceptions to the general rule (precluding tort liability against third-party contractors) applies to the factual circumstances surrounding the accident: (1) the contractor “launched a force or instrument of harm,” thereby creating or exacerbating a hazardous condition; (2) the party detrimentally relied on the continued performance of the contractor’s duties; or (3) the contractor entirely displaced the landowner’s duty to maintain the premises safely. See Espinal, 98 N.Y.2d at 140; see also Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 360-361 (2007); Church v. Callanan Indus., 99 N.Y.2d 104, 111 (2002).