Beneficial Mortgage Corp. v. Lawrence

5 A.D.3d 339, 772 N.Y.S.2d 713

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 2004
• Status: Published

Opinion

In an action to cancel and expunge a mortgage satisfaction erroneously made and recorded, the defendants appeal from a judgment of the Supreme Court, Westchester County (Lefkowitz, J.), entered April 23, 2002, which, inter alia, upon granting the plaintiffs’ motion to strike their answer for failure to comply with discovery requests, in effect, cancelled the mortgage satisfaction.

Ordered that the judgment is affirmed, with costs.

Contrary to the defendants’ contentions, the Supreme Court providently exercised its discretion in striking their answer. Although striking a pleading pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party’s conduct is shown to be willful, contumacious, or in bad faith (see Frias v Fortini, 240 AD2d 467 [1997]). In this case, the willful and contumacious character of the defendants’ failure to respond to discovery can be inferred from their repeated refusals to comply with the plaintiffs discovery requests, even after being directed do so by court order, as well as the inadequate explanations offered to excuse their failures to comply (see Conch Assoc. v PMCC Mtge. Corp., 303 AD2d 538 [2003]; Pryzant v City of New York, 300 AD2d 383 [2002]).

Moreover, the defendants are deemed to have admitted all traversable allegations in the complaint as a result of having their answer stricken (see Lavi v Lavi, 256 AD2d 602 [1998]). Accordingly, the Supreme Court properly determined the satisfaction of mortgage invalid and ineffective (see Matter of Barclays Bank of N.Y., 96 AD2d 594 [1983]).

The defendants’ remaining contentions are without merit. Smith, J.P., Goldstein, Luciano and Adams, JJ., concur.