Matter of Alston

2019 NY Slip Op 6198

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 21, 2019
• Docket: Index No. 3201/12
• Status: Published

Opinion

Matter of Alston (2019 NY Slip Op 06198)

Matter of Alston

2019 NY Slip Op 06198

Decided on August 21, 2019

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 21, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
LEONARD B. AUSTIN, J.P.
JOHN M. LEVENTHAL
SHERI S. ROMAN
ROBERT J. MILLER, JJ.

2017-09202
(Index No. 3201/12)

[*1]In the Matter of Gloria Alston, deceased. Juan Spruill, petitioner-respondent; Joe Spruill, respondent-appellant.

Lowell B. Davis, Carle Place, N.Y., for respondent-appellant.

Levy & Nau, P.C., Brooklyn, NY (Roger A. Levy of counsel), for petitioner-respondent.

DECISION & ORDER

In a proceeding pursuant to SCPA 1001 for the administration of the estate of Gloria Alston, Joe Spruill appeals from an order of the Surrogate's Court, Kings County (Margarita Lopez Torres, S.), dated July 21, 2017. The order granted the petitioner's motion pursuant to CPLR 3126 to strike Joe Spruill's objections to the petition.

ORDERED that the order is affirmed, with costs.

The petitioner, Juan Spruill, filed a petition for letters of administration of the estate of Gloria Alston. Joe Spruill, the petitioner's father (hereinafter the appellant), filed objections to the petition. The petitioner moved pursuant to CPLR 3126 to strike the appellant's objections, based on the appellant's failure to comply with certain discovery demands and discovery orders. In the order appealed from, the Surrogate's Court granted the petitioner's motion.

"The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court's discretion" (Crupi v Rashid, 157 AD3d 858, 859). Here, the appellant's willful and contumacious conduct can be inferred from his repeated failures, without an adequate excuse, to comply with discovery demands and the Surrogate's Court's discovery orders (see Abizeid v Turner Constr. Co., 172 AD3d 795; Mears v Long, 149 AD3d 823, 824). The court providently exercised its discretion in granting the petitioner's motion pursuant to CPLR 3126 to strike the appellant's objections to the petition.

AUSTIN, J.P., LEVENTHAL, ROMAN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court