Helms v. Gangemi

265 A.D.2d 203, 696 N.Y.S.2d 441, 1999 N.Y. App. Div. LEXIS 10304

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 14, 1999
• Status: Published

Opinion

—Orders, Supreme Court, New York County (Beatrice Shainswit, J.), entered May 22, June 11 and June 25, 1998, which, inter alia, struck defendant’s pleadings pursuant to CPLR 3126, unanimously affirmed, with costs.

Defendant’s pleadings were properly struck because of his repeated failure to comply with plaintiffs disclosure demands, as directed by the IAS Court. The preliminary conference order gave defendant ample opportunity to object to plaintiffs disclosure demands. At the compliance conference, defendant’s objections were rejected and he was directed to produce all outstanding demanded documents. Any justification defendant might have had for resisting plaintiffs demands was undermined by his failure to oppose substantively plaintiffs ensuing motion for CPLR 3126 sanctions. Defendant again failed to produce the outstanding documents by the time limited in the court’s conditional order of dismissal. He was given still another opportunity on the date set for trial; his pleadings were properly struck at that time. Defendant’s persistent failure to produce the documents demanded by plaintiff and directed by the court was dilatory conduct that warranted the extreme sanction of striking his pleadings (see, Zletz v Wetanson, 67 NY2d 711; Ortiz v Weaver, 188 AD2d 290). Defendant’s motion for a protective order, made in the afternoon of the day that his pleadings were unconditionally struck, was properly denied (see, CPLR 3103). No unfair advantage was taken of defendant. We have considered defendant’s other arguments, including that the IAS Justice is biased and should recuse herself, and find them to be without merit. Concur — Ellerin, P. J., Rosenberger, Tom, Lerner and Saxe, JJ.