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

1191
CA 13-01135
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, CARNI, AND SCONIERS, JJ.


MITCHELL T. HALL, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

INTEGRITY REAL ESTATE PROPERTIES, INC., RJG
HOLDINGS, LLC, AND THOMAS J. HARRINGTON,
DEFENDANTS-RESPONDENTS.


VAN HENRI WHITE, ROCHESTER, FOR PLAINTIFF-APPELLANT.

MARK C. RODGERS, BUFFALO, FOR DEFENDANTS-RESPONDENTS INTEGRITY REAL
ESTATE PROPERTIES, INC. AND THOMAS J. HARRINGTON.

BURKE, ALBRIGHT, HARTER & REDDY, LLP, ROCHESTER (CASEY ACKER OF
COUNSEL), FOR DEFENDANT-RESPONDENT RJG HOLDINGS, LLC.


     Appeal from an order of the Supreme Court, Monroe County (J.
Scott Odorisi, J.), entered April 2, 2013. The order, among other
things, granted defendants’ motions to dismiss the complaint.

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

     Memorandum: Plaintiff commenced this Labor Law and common-law
negligence action seeking damages for personal injuries that he
sustained when he fell from a ladder. He now appeals from an order
granting the motions of defendants seeking to dismiss the complaint on
the ground that plaintiff failed to appear for a deposition ordered by
Supreme Court, and denying his cross motion seeking to amend the
caption. In support of their respective motions, defendants
established that plaintiff commenced this action under the name
Mitchell T. Hall and that he signed various court documents under that
name. During the discovery process, however, the former attorneys for
plaintiff moved to withdraw from representation of him and notified
the court and counsel that plaintiff was incarcerated on unspecified
charges arising from the use of that name. Plaintiff later submitted
an affidavit stating that his real name is Danny Hall, but that he had
been using the alias Mitchell T. Hall, the name of his brother.
Plaintiff further stated that his brother died after giving plaintiff
permission to use the brother’s name, but plaintiff submitted no
admissible evidence supporting those statements. The court permitted
plaintiff’s former attorneys to withdraw and, upon motions of
defendants, ordered plaintiff to appear for a deposition. Pursuant to
the court’s order directing plaintiff to appear for the deposition,
                                 -2-                          1191
                                                         CA 13-01135

notice was sent to “Mitchell T. Hall c/o Danny Hall,” at the address
that plaintiff previously provided to the court in a notarized
statement. Plaintiff did not appear for the court-ordered deposition.
Defendants moved separately to dismiss the complaint on the ground
that plaintiff failed to appear for the court-ordered deposition, and
plaintiff, represented by new counsel, cross-moved to amend the
caption to reflect that his name is Danny Hall, a.k.a. Mitchell T.
Hall.

     We reject plaintiff’s contention that the court erred in granting
the motions. “Trial courts have broad discretion in supervising
disclosure and, absent a clear abuse of that discretion, a trial
court’s exercise of such authority should not be disturbed” (Gadley v
U.S. Sugar Co., 259 AD2d 1041, 1042). The CPLR provides that, “[i]f
any party . . . refuses to obey an order for disclosure . . . , the
court may make such orders with regard to the . . . refusal as are
just, among them: . . . an order . . . dismissing the action” (CPLR
3126 [3]). Thus, “ ‘when a party fails to comply with a court order
and frustrates the disclosure scheme set forth in the CPLR,’ the
dismissal of a pleading is warranted” (Kimmel v State of New York, 286
AD2d 881, 882, quoting Kihl v Pfeffer, 94 NY2d 118, 122). Here, the
court properly concluded that the failure to comply with the discovery
order was “ ‘willful, contumacious or in bad faith’ ” (Hill v Oberoi,
13 AD3d 1095, 1096; see Leone v Esposito, 299 AD2d 930, 931, lv
dismissed 99 NY2d 611), and that plaintiff had committed a fraud on
the court that was “so serious that it undermines . . . the integrity
of the proceeding” (Baba-Ali v State of New York, 19 NY3d 627, 634
[internal quotation marks omitted]; see CDR Créances S.A.S. v Cohen,
23 NY3d 307, 318). Contrary to plaintiff’s further contention, he
failed to provide a reasonable excuse for his failure to appear for
the deposition (see Hann v Black, 96 AD3d 1503, 1504-1505; Herrara v
City of New York, 238 AD2d 475, 476). Consequently, we conclude that
the court did not abuse its discretion by dismissing the complaint
(see generally Kubacka v Town of N. Hempstead, 240 AD2d 374, 375).

     Contrary to plaintiff’s further contention, we agree with
defendants that the court properly denied the cross motion to amend
the complaint to state plaintiff’s purported legal name. In support
of his cross motion, plaintiff relied entirely upon his affidavit, in
which he explained that he had been using his dead brother’s name
since 1996. “[That] affidavit[], however, . . . was insufficient to
establish that there was merely a misnomer in the description of the
party [plaintiff]” requiring amendment (Dabb v NYNEX Corp., 262 AD2d
1079, 1080).




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
