Opinion
2013-06703, Index No. 598/12.
04-01-2015
Michael L. BRANDENBURG, et al., respondents, v. COUNTY OF ROCKLAND SEWER DISTRICT # 1, State of New York, appellant, et al., defendant.
Alan B. Brill, P.C., Suffern, N.Y. (Sheila S. Rosenrauch of counsel), for appellant. Michael L. Brandenburg and Wendy K. Brandenburg, New City, N.Y., respondents pro se.
Alan B. Brill, P.C., Suffern, N.Y. (Sheila S. Rosenrauch of counsel), for appellant.
Michael L. Brandenburg and Wendy K. Brandenburg, New City, N.Y., respondents pro se.
PETER B. SKELOS, J.P., RUTH C. BALKIN, L. PRISCILLA HALL, and JOSEPH J. MALTESE, JJ.
Opinion In an action to recover damages for injury to real property, the defendant County of Rockland Sewer District # 1, State of New York, appeals, as limited by its brief, from so much of an order of the Supreme Court, Rockland County (Berliner, J.), dated April 22, 2013, as granted that branch of the plaintiffs' motion which was pursuant to CPLR 3126 to strike its answer. ORDERED that the order is affirmed insofar as appealed from, with costs.
The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the Supreme Court (see Kihl v. Pfeffer, 94 N.Y.2d 118, 700 N.Y.S.2d 87, 722 N.E.2d 55 ; Montemurro v. Memorial Sloan–Kettering Cancer Ctr., 94 A.D.3d 1066, 942 N.Y.S.2d 623 ). The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands or court-ordered discovery is willful and contumacious (see Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 A.D.3d 201, 210, 959 N.Y.S.2d 74 ; Commisso v. Orshan, 85 A.D.3d 845, 925 N.Y.S.2d 612 ). The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse (see Montemurro v. Memorial Sloan–Kettering Cancer Ctr., 94 A.D.3d at 1066, 942 N.Y.S.2d 623 ; Commisso v. Orshan, 85 A.D.3d at 845, 925 N.Y.S.2d 612 ).
Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting that branch of the plaintiffs' motion which was pursuant to CPLR 3126 to strike the appellant's answer. Contrary to the appellant's contention, the willful and contumacious nature of its conduct may properly be inferred from its repeated failures, without an adequate excuse, to comply with the plaintiffs' discovery demands and court-ordered discovery schedules (see Crescent Elec. Supply Co., Inc., of N.Y. v. Travelers Cas. & Sur. Co. of Am., 111 A.D.3d 659, 974 N.Y.S.2d 799 ; Montemurro v. Memorial Sloan–Kettering Cancer Ctr., 94 A.D.3d at 1066, 942 N.Y.S.2d 623 ; Flynn v. City of New York, 101 A.D.3d 803, 805, 955 N.Y.S.2d 637 ).