McDonald v. Mid County Transit Mix

174 A.D.2d 614

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 1991
• Status: Published

Opinion

—In two related actions to recover damages for wrongful death and for personal injuries, the defendants in Action No. 1 appeal from an order of the Supreme Court, Suffolk County (Baisley, J.), entered April 19, 1990, which granted the plaintiff Monica McDonald’s motion pursuant to CPLR 3126, to strike their answer, and the defendants in Action No. 2 appeal from (1) an order of the same court entered January 17, 1990, which, inter alia, granted the plaintiff Emilio Tamuccio’s motion to strike the defendants’ answer unless the defendants complied with the plaintiff’s discovery demands within 30 days of service upon them of a copy of the order with notice of entry, and (2) an order of the same court entered June 8, 1990, which, inter alia, granted the plaintiff’s motion pursuant to CPLR 3126 to strike the defendants’ answer.

Ordered that the orders are affirmed; and it is further,

Ordered that the respondents in Action Nos. 1 and 2 are awarded costs.

Under the circumstances, the Supreme Court did not improvidently exercise its discretion in striking the defendants’ answers in Action Nos. 1 and 2 based on their willful and contumacious behavior in failing to comply with the respective plaintiffs’ discovery requests (Moriates v Powertest Petroleum Co., 114 AD2d 888; Wolfson v Nassau County Med. Center, 141 AD2d 815). Mangano, P. J., Kooper, Harwood and Balletta, JJ., concur.