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