Opinion
04-12-2017
Robert MEARS, et al., respondents, v. Christopher LONG, also known as Chris Long, et al., appellants.
Rabinowitz, Galina & Rosen, Mineola, NY (Gayle A. Rosen of counsel), for appellants. Anthony W. Core, P.C., Westbury, NY (Michael E. White and Bradley Slover of counsel), for respondents.
Rabinowitz, Galina & Rosen, Mineola, NY (Gayle A. Rosen of counsel), for appellants.
Anthony W. Core, P.C., Westbury, NY (Michael E. White and Bradley Slover of counsel), for respondents.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI and HECTOR D. LaSALLE, JJ.
In an action, inter alia, to recover damages for breach of fiduciary duty and conversion, the defendants appeal from an order of the Supreme Court, Suffolk County (Hudson, J.), dated May 14, 2015, which granted the plaintiffs' motion pursuant to CPLR 3126 to strike their answer and for leave to enter a default judgment against them based on their failure to comply with court-ordered discovery.
ORDERED that the order is affirmed, with costs.
The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is within the broad discretion of the motion court (see Parker Waichman, LLP v. Laraia, 131 A.D.3d 1215, 1216, 16 N.Y.S.3d 774 ; Lazar, Saders, Thaler & Assoc., LLP v. Lazar, 131 A.D.3d 1133, 16 N.Y.S.3d 326 ; Wolf v. Flowers, 122 A.D.3d 728, 996 N.Y.S.2d 169 ). 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 Lucas v. Stam, 147 A.D.3d 921, 48 N.Y.S.3d 150 ; Shah v. Oral Cancer Prevention Int., Inc., 138 A.D.3d 722, 724, 30 N.Y.S.3d 154 ; Lazar, Saders, Thaler & Assoc., LLP v. Lazar, 131 A.D.3d at 1133, 16 N.Y.S.3d 326 ; Brandenburg v. County of Rockland Sewer Dist. 1, State of N.Y., 127 A.D.3d 680, 681, 6 N.Y.S.3d 570 ). 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 Lucas v. Stam, 147 A.D.3d 921, 48 N.Y.S.3d 150 ; Lazar, Saders, Thaler & Assoc., LLP v. Lazar, 131 A.D.3d at 1134, 16 N.Y.S.3d 326 ; Brandenburg v. County
of Rockland Sewer Dist. 1, State of N.Y., 127 A.D.3d at 680, 6 N.Y.S.3d 570 ).
Here, the defendants' willful and contumacious conduct can be inferred from their repeated failures, without an adequate excuse, to comply with discovery demands and the Supreme Court's discovery orders (see Lucas v. Stam, 147 A.D.3d 921, 48 N.Y.S.3d 150 ; Parker Waichman, LLP v. Laraia, 131 A.D.3d at 1216, 16 N.Y.S.3d 774 ; Lazar, Saders, Thaler & Assoc., LLP v. Lazar, 131 A.D.3d at 1134, 16 N.Y.S.3d 326 ; Brandenburg v. County of Rockland Sewer Dist. 1, State of N.Y., 127 A.D.3d at 680, 6 N.Y.S.3d 570 ). Accordingly, the court providently exercised its discretion in granting the plaintiffs' motion pursuant to CPLR 3126 to strike the defendants' answer and for leave to enter a default judgment against the defendants.