        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

880
CA 13-00879
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND LINDLEY, JJ.


MARCIA ALLEN, PLAINTIFF,

                    V                             MEMORANDUM AND ORDER

WAL-MART STORES, INC., DEFENDANT-RESPONDENT.
(ACTION NO. 1.)
-----------------------------------------------
MARCIA ALLEN, PLAINTIFF,

                    V

WAL-MART STORES EAST, LP, DEFENDANT-RESPONDENT.
(ACTION NO. 2.)
-----------------------------------------------
MELVIN BRESSLER, ESQ., APPELLANT.

(APPEAL NO. 1.)


MELVIN BRESSLER, ROCHESTER, APPELLANT PRO SE.

BROWN HUTCHINSON LLP, ROCHESTER (R. ANDREW FEINBERG OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Evelyn
Frazee, J.), entered July 25, 2012. The order, insofar as appealed
from, directed appellant to pay the sum of $2,090 to counsel for
defendant.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced these actions seeking damages
for personal injuries that she allegedly sustained in two separate
falls at defendant’s store. In appeal No. 1, plaintiff appeals from
an order in both actions granting that part of defendant’s motion
pursuant to 22 NYCRR 130-1.1 and imposing sanctions in the amount of
$2,090 on nonparty Melvin Bressler, the attorney for plaintiff. As a
preliminary matter, we note that, although plaintiff’s notice of
appeal recites that plaintiff is appealing from the order in appeal
No. 1, she is in fact not aggrieved by the imposition of sanctions
against her attorney (see Moore v Federated Dept. Stores, Inc., 94
AD3d 638, 639, appeal dismissed 19 NY3d 1065). Nevertheless, we deem
the notice of appeal in appeal No. 1 to have been filed on behalf of
the nonparty attorney, and we therefore reach the issue raised in that
                                 -2-                           880
                                                         CA 13-00879

appeal (see CPLR 2001; Matter of Tagliaferri v Weiler, 1 NY3d 605,
606; Joan 2000, Ltd. v Deco Constr. Corp., 66 AD3d 841, 842). In
appeal No. 2, plaintiff appeals from an order granting defendant’s
motion pursuant to CPLR 3126 (3) to strike the complaint and to
dismiss action No. 2 for failure to comply with discovery orders.

     In appeal No. 1, we conclude that, under the circumstances,
Supreme Court did not abuse its discretion in imposing sanctions on
plaintiff’s attorney for what the court characterized as “excessive
and inexcusable delay” in providing discovery responses (see Hughes v
Farrey, 48 AD3d 385, 385). In appeal No. 2, we reject plaintiff’s
contention that the court applied an incorrect legal standard in
striking the complaint and dismissing action No. 2. “[T]he type and
degree of sanction [for a discovery violation] will be left to the
discretionary authority of the trial court which will remain
undisturbed absent an abuse thereof” (Osterhoudt v Wal-Mart Stores,
273 AD2d 673, 674; see CPLR 3126). “While the nature and degree of
the penalty to be imposed on a motion pursuant to CPLR 3126 is a
matter of [the court’s] discretion . . . , striking a pleading is
appropriate where there is a clear showing that the failure to comply
with discovery demands is willful, contumacious, or in bad faith”
(Birch Hill Farm v Reed, 272 AD2d 282, 282). Here, the court properly
determined that defendant met its initial burden of establishing
willful, contumacious or bad faith conduct by plaintiff, thereby
shifting the burden to plaintiff to offer a reasonable excuse (see
Hill v Oberoi, 13 AD3d 1095, 1096; Herrera v City of New York, 238
AD2d 475, 476). Plaintiff failed to meet her burden (see Hill, 13
AD3d at 1096; Nunn v GTE Sylvania, 251 AD2d 1089, 1091), and we
therefore conclude that the court properly exercised its discretion by
striking the complaint in action No. 2.




Entered:   October 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
