Conch Associates, Inc. v. PMCC Mortgage Corp.

303 A.D.2d 538, 756 N.Y.S.2d 456, 2003 N.Y. App. Div. LEXIS 2720

Opinion

—In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Hall, J.), dated April 2, 2002, which granted the defendant’s motion to strike the complaint pursuant to CPLR 3126, and denied its cross motion to certify the action ready for trial.

Ordered that the order is affirmed, with costs.

The nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter generally left to the discretion of the Supreme Court. However, to invoke the drastic remedy of striking a pleading, the court must determine that the party’s failure to comply with a disclosure order was the result of willful, deliberate, and contumacious conduct or its equivalent (see Montgomery v City of New York, 296 AD2d 386 [2002]; Birch Hill Farm v Reed, 272 AD2d 282 [2000]; Espinal v City of New York, 264 AD2d 806 [1999]; Herrera v City of New York, 238 AD2d 475, 476 [1997]). In the instant case, the Supreme Court providently exercised its discretion in granting the motion to strike the complaint. The plaintiffs willful and contumacious conduct can be inferred from its repeated failure to comply with court orders directing disclosure and inadequate explanations offered to excuse the failures to comply (see Montgomery v City of New York, supra; Espinal v City of New York, supra; Herrera v City of New York, supra). Feuerstein, J.P., Goldstein, H. Miller and Rivera, JJ., concur.