Frank Parlamis, Inc. v. Piccola Pizza Café-Times Square, Inc.

259 A.D.2d 334, 687 N.Y.S.2d 39, 1999 N.Y. App. Div. LEXIS 2784

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 1999
• Status: Published

Opinion

Order, Supreme Court, New York County (Ira Gammerman, J.), entered July 16, 1998, which, to the extent appealed from, upon defendants-appellants’ failure to comply with court-ordered discovery, inter alia, struck defendants-appellants’ answer, dismissed their counterclaim, and directed entry of judgment in plaintiffs favor as against defendants-appellants on the issue of liability, unanimously affirmed, with costs.

Defendants-appellants’ present claims, that their failure to comply with court-ordered discovery was not sufficiently willful or contumacious to warrant the striking of their answer and dismissal of their counterclaim, were not raised before Trial Term and are not properly preserved for appellate review (see, P.T. Bank Cent. Asia v Chinese Am. Bank, 229 AD2d 224, 229). In any event, defendants’ willful and contumacious refusal to disclose can be inferred from their repeated failure to abide by judicially established discovery deadlines, which failure is in no way mitigated by defendants-appellants’ differences and refusal to cooperate with their originally retained counsel. Moreover, even after having been afforded three additional days to comply with the outstanding discovery orders with the assistance of newly retained counsel, defendants-appellants still failed to do as they were ordered, and, we note, there is no showing that the additional time was inadequate to facilitate defendants-appellants’ compliance had they cooperated with their new counsel to that end (see, Besson v Beirne, 188 AD2d 330). Concur — Ellerin, P. J., Nardelli, Williams and Rubin, JJ.