Bigman v. Dime Savings Bank

181 A.D.2d 648, 581 N.Y.S.2d 208, 1992 N.Y. App. Div. LEXIS 3001

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 2, 1992
• Status: Published

Opinion

— In an action to recover damages, inter alia, for defamation, the plaintiffs appeal from an order of the Supreme Court, Queens County (Graci, J.), dated January 18, 1990, which granted the defendant’s motion to strike their complaint pursuant to CPLR 3126.

Ordered that the order is affirmed, with costs.

Although the sanction of unconditionally striking a pleading pursuant to CPLR 3126 should not be invoked unless a party’s default is shown to be deliberate and contumacious (see, Read v Dickson, 150 AD2d 543, 544), the record before us provides ample support for the court’s application of that sanction.

The record demonstrates that the court twice issued orders conditionally striking the plaintiffs’ complaint, made a specific finding in its order dated April 4, 1989, that the plaintiffs were willfully declining to provide discovery which had been required by a previously entered order, and imposed an additional $2,500 monetary sanction as a penalty for the plaintiffs’ failure to fully comply with the court’s discovery directives. The plaintiffs later branded several of the defendant’s subsequent discovery demands as "improper” or "irrelevant”, even though the court had specifically rejected these claims in an earlier order and directed the plaintiffs to provide responses to these items. We find that the plaintiffs’ deliberate refusal to comply with the foregoing discovery order, considered in conjunction with the plaintiffs’ history of resisting disclosure, fully supports the court’s exercise of discretion in striking the plaintiffs’ complaint. Bracken, J. P., Lawrence, Fiber and Miller, JJ., concur.