Barniak v. Richter

52 A.D.3d 629, 859 N.Y.S.2d 374

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 2008
• Status: Published

Opinion

In an action, inter alia, to set aside a transfer of real property as a fraudulent conveyance under the Debtor and Creditor Law, the defendants appeal from a judgment of the Supreme Court, Nassau County (Martin, J.), dated August 20, 2007, which, upon an order of the same court dated March 23, 2007, granting the plaintiff’s motion pursuant to CFLR 3126 to strike the answer for failure to comply with a discovery order, inter alia, set aside the subject conveyance as fraudulent.

Ordered that the judgment is affirmed, with costs.

The determination whether to strike a pleading for failure to comply with discovery orders lies within the sound discretion of the trial court (see CPLR 3126 [3]; Maignan v Nahar, 37 AD3d 557 [2007]; Matter of Cohn, 15 AD3d 655 [2005]; Bates v Baez, 299 AD2d 382 [2002]; Patterson v Greater N.Y. Corp. of Seventh Day Adventists, 284 AD2d 382, 383 [2001]). Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the plaintiff’s motion to strike the answer (see CPLR 3126 [3]; Casey v Casey, 39 AD3d 579, 580 [2007]; Pashayan v Corson, 306 AD2d 259 [2003]; cf. Harris v City of New York, 211 AD2d 663, 664 [1995]).

The defendants’ remaining contentions are without merit. Spolzino, J.P, Ritter, Dillon, Balkin and Leventhal, JJ., concur.