Linwood Roofing & Contracting Co. v. Olit Associates

Appellate Division of the Supreme Court of New York

Linwood Roofing & Contracting Co. v. Olit Associates

123 A.D.2d 840, 507 N.Y.S.2d 455, 1986 N.Y. App. Div. LEXIS 60961

Appellate Division of the Supreme Court of the State of New York·Decided October 27, 1986·Published·Cited by 6 cases

Opinion

In an action to foreclose a mechanic’s lien against real property, the defendants appeal from an order of the Supreme Court, Kings County (Golden, J.), dated March 14, 1985, which granted the plaintiff’s motion to dismiss the defendants’ answer and counterclaim and granted a judgment of foreclosure to the plaintiff.

Ordered that the order is affirmed, with costs.

The striking of an answer and/or counterclaim for the failure to comply with court-ordered discovery is an extreme and drastic penalty which should not be invoked unless it is clearly demonstrated that the default was deliberate and contumacious (see, Cinelli v Radcliffe, 35 AD2d 829; Battaglia v Hofmeister, 100 AD2d 833). Under the circumstances of this case, where the defendants long engaged in dilatory, evasive and obstructive conduct (see, Sony Corp. v Savemart, Inc., 59 AD2d 676), Special Term did not abuse its discretion in granting the requested relief. Brown, J. P., Weinstein, Lawrence and Hooper, JJ., concur.

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In an action to foreclose a mechanic’s lien against real property, the defendants appeal from an order of the Supreme Court, Kings County (Golden, J.), dated March 14, 1985, which granted the plaintiff’s motion to dismiss the defendants’ answer and counterclaim and granted a judgment of foreclosure to the plaintiff.

Ordered that the order is affirmed, with costs.

The striking of an answer and/or counterclaim for the failure to comply with court-ordered discovery is an extreme and drastic penalty which should not be invoked unless it is clearly demonstrated that the default was deliberate and contumacious (see, Cinelli v Radcliffe, 35 AD2d 829; Battaglia v Hofmeister, 100 AD2d 833). Under the circumstances of this case, where the defendants long engaged in dilatory, evasive and obstructive conduct (see, Sony Corp. v Savemart, Inc., 59 AD2d 676), Special Term did not abuse its discretion in granting the requested relief. Brown, J. P., Weinstein, Lawrence and Hooper, JJ., concur.

Linwood Roofing & Contracting Co. v. Olit Associates, 123 A.D.2d 840, 507 N.Y.S.2d 455, 1986 N.Y. App. Div. LEXIS 60961 (N.Y. Ct. App. 1986).

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Opinion

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