Opinion
570939/02.
Decided October 1, 2003.
Defendant and third-party plaintiff Arco Management Corp. appeals from an order of the Civil Court, New York County, entered June 19, 2002 (Eileen A. Rakower, J.) which granted the third-party defendant's motion to dismiss the third-party action and the plaintiff's cross motion to strike defendant's answer in the main action, both pursuant to CPLR 3126.
PRESENT: WILLIAM J. DAVIS, J.P., PHYLLIS GANGEL-JACOBS, MARTIN SCHOENFELD, Justices.
Order entered June 19, 2002 (Eileen A. Rakower, J.) affirmed, with $10 costs.
In view of the repeated failure of the defendant and third-party plaintiff Arco Management Corp. (defendant) to respond to its adversaries' discovery demands and prior court orders, the importance of the documents sought as they pertain to the claims raised in the main and impleader actions, and the defendant's failure to indicate the fate of the documents or to adequately explain what efforts were made to locate them, the record supports a finding that defendant's failure to comply with the conditional order of April 8, 2002 was willful. Accordingly, the court did not improvidently exercise its discretion in granting the respective cross motions to strike defendant's answer in the main action and to dismiss the third-party complaint ( see, Kihl v. Pfeffer, 94 NY2d 118, 122-123; Siegman v. Rosen, 270 AD2d 14; Caruso v. Malano, 234 AD2d 496).
This constitutes the decision and order of the court.