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B.E.N. Trading Corp. v. Shirley Import

Appellate Division of the Supreme Court of New York, First Department
Dec 22, 2009
68 A.D.3d 629 (N.Y. App. Div. 2009)

Opinion

Nos. 1836, 1836A.

December 22, 2009.

Judgment, Supreme Court, New York County (Richard B. Lowe, III, J.), entered July 23, 2008, awarding plaintiff the principal sum of $250,000 against defendants, dismissing the third-party action and awarding third-party defendants nominal costs and disbursements against defendants/third-party plaintiffs, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered July 17, 2008, which granted plaintiff's motion to strike defendants' answer, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Silver Silver, LLP, Somerset, NJ (Herbert J. Silver of counsel), for appellants.

Jonathan A. Stein, Cedarhurst, for respondents.

Before: Sweeny, J.P., Catterson, Renwick, Freedman and Abdus-Salaam, JJ.


Defendants' failure to offer a reasonable excuse for their noncompliance with discovery demands, court orders and the court's rules gives rise to an inference of willful and contumacious conduct ( Siegman v Rosen, 270 AD2d 14, 15). The striking of their answer and third-party complaint was a proper exercise of judicial discretion in light of such conduct (CPLR 3126; see Kihl v Pfeffer, 94 NY2d 118, 123).

[Prior Case History: 2008 NY Slip Op 32006(U).]


Summaries of

B.E.N. Trading Corp. v. Shirley Import

Appellate Division of the Supreme Court of New York, First Department
Dec 22, 2009
68 A.D.3d 629 (N.Y. App. Div. 2009)
Case details for

B.E.N. Trading Corp. v. Shirley Import

Case Details

Full title:B.E.N. TRADING CORP., Plaintiff, v. SHIRLEY IMPORT, INC., et al.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 22, 2009

Citations

68 A.D.3d 629 (N.Y. App. Div. 2009)
2009 N.Y. Slip Op. 9535
890 N.Y.S.2d 323

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