Matone v. Sycamore Realty Corp.

Appellate Division of the Supreme Court of New York

Matone v. Sycamore Realty Corp.

87 A.D.3d 1113, 930 N.Y.2d 460

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 27, 2011

StatusPublished

Cited by7 cases

This text of 87 A.D.3d 1113 (Matone v. Sycamore Realty Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Matone v. Sycamore Realty Corp., 87 A.D.3d 1113, 930 N.Y.2d 460 (N.Y. Ct. App. 2011).

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Opinion

It is not an improvident exercise of discretion for a court to strike a party’s pleading based upon a willful and contumacious failure to comply with discovery demands or orders {see Rock [1114]*1114City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685 [2011]; cf. Lomax v Rochdale Vil., Inc., 76 AD3d 999 [2010]; Moray v City of Yonkers, 76 AD3d 618, 619 [2010]; Cobenas v Ginsburg Dev. Cos., LLC, 74 AD3d 1269, 1270 [2010]). “ ‘Willful and. contumacious conduct may be inferred from a party’s repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply’ ” (Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798, 800 [2010], quoting Savin v Brooklyn Mar. Park Dev. Corp., 61 AD3d 954, 954-955 [2009]), “ ‘or a failure to comply with court-ordered discovery over an extended period of time’ ” (Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d at 800, quoting Prappas v Papadatos, 38 AD3d 871, 872 [2007]; see Russell v B&B Indus., 309 AD2d 914, 915 [2003]; Penafiel v Puretz, 298 AD2d 446, 447 [2002]).

The record reveals that the appellant failed over an extended period of time to comply with either the Supreme Court’s preliminary conference order or the plaintiffs’ notices for discovery, and that he never offered any explanation therefor. Under such circumstances, the Supreme Court was warranted in granting that branch of the plaintiffs motion which was to strike the appellant’s answer. In addition, once the appellant’s answer was stricken, the court properly concluded that the plaintiffs were entitled to the relief sought in the complaint, to wit, discharge of the subject mortgage lien (see Beneficial Mtge. Corp. v Lawrence, 5 AD3d 339 [2004]; Lavi v Lavi, 256 AD2d 602 [1998]; see also Saberhagen v Sweeney, 28 AD3d 737 [2006]).

The appellant’s remaining contentions are without merit. Rivera, J.E, Florio, Leventhal and Roman, JJ., concur.

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It is not an improvident exercise of discretion for a court to strike a party’s pleading based upon a willful and contumacious failure to comply with discovery demands or orders {see Rock [1114]*1114City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685 [2011]; cf. Lomax v Rochdale Vil., Inc., 76 AD3d 999 [2010]; Moray v City of Yonkers, 76 AD3d 618, 619 [2010]; Cobenas v Ginsburg Dev. Cos., LLC, 74 AD3d 1269, 1270 [2010]). “ ‘Willful and. contumacious conduct may be inferred from a party’s repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply’ ” (Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798, 800 [2010], quoting Savin v Brooklyn Mar. Park Dev. Corp., 61 AD3d 954, 954-955 [2009]), “ ‘or a failure to comply with court-ordered discovery over an extended period of time’ ” (Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d at 800, quoting Prappas v Papadatos, 38 AD3d 871, 872 [2007]; see Russell v B&B Indus., 309 AD2d 914, 915 [2003]; Penafiel v Puretz, 298 AD2d 446, 447 [2002]).

The record reveals that the appellant failed over an extended period of time to comply with either the Supreme Court’s preliminary conference order or the plaintiffs’ notices for discovery, and that he never offered any explanation therefor. Under such circumstances, the Supreme Court was warranted in granting that branch of the plaintiffs motion which was to strike the appellant’s answer. In addition, once the appellant’s answer was stricken, the court properly concluded that the plaintiffs were entitled to the relief sought in the complaint, to wit, discharge of the subject mortgage lien (see Beneficial Mtge. Corp. v Lawrence, 5 AD3d 339 [2004]; Lavi v Lavi, 256 AD2d 602 [1998]; see also Saberhagen v Sweeney, 28 AD3d 737 [2006]).

The appellant’s remaining contentions are without merit. Rivera, J.E, Florio, Leventhal and Roman, JJ., concur.

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87 A.D.3d 1113, 930 N.Y.2d 460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matone-v-sycamore-realty-corp-nyappdiv-2011.

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