Mears v. Long

2017 NY Slip Op 2782, 149 A.D.3d 823, 52 N.Y.S.3d 124

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 12, 2017
• Docket: 2015-06897
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of fiduciary duty and conversion, the defendants appeal from an order of the Supreme Court, Suffolk County (Hudson, J.), dated May 14, 2015, which granted the plaintiffs’ motion pursuant to CPLR 3126 to strike their answer and for leave to enter a default judgment against them based on their failure to comply with court-ordered discovery.

Ordered that the order is affirmed, with costs.

The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is within the broad discretion of the motion court (see Parker Watchman, LLP v Laraia, 131 AD3d 1215, 1216 [2015]; Lazar, Sanders, Thaler & Assoc., LLP v Lazar, 131 AD3d 1133 [2015]; Wolf v Flowers, 122 AD3d 728 [2014]). The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands or court-ordered discovery is willful and contumacious (see Lucas v Stam, 147 AD3d 921 [2017]; Shah v Oral Cancer Prevention Intl., Inc., 138 AD3d 722, 724 [2016]; Lazar, Sanders, Thaler & Assoc., LLP v Lazar, 131 AD3d at 1133; Brandenburg v County of Rockland Sewer Dist. #1, State of N.Y., 127 AD3d 680, 681 [2015]). The willful and contumacious character of a party’s conduct can be inferred from the party’s repeated failure to comply with discovery demands or orders without a reasonable excuse (see Lucas v Stam, 147 AD3d 921 [2017]; Lazar, Sanders, Thaler & Assoc., LLP v Lazar, 131 AD3d at 1134; Brandenburg v County of Rockland Sewer Dist. #1, State of N.Y., 127 AD3d at 680).

Here, the defendants’ willful and contumacious conduct can be inferred from their repeated failures, without an adequate excuse, to comply with discovery demands and the Supreme Court’s discovery orders (see Lucas v Stam, 147 AD3d 921 [2017]; Parker Waichman, LLP v Laraia, 131 AD3d at 1216; Lazar, Sanders, Thaler & Assoc., LLP v Lazar, 131 AD3d at 1134; Brandenburg v County of Rockland Sewer Dist. #1, State of N.Y., 127 AD3d at 680). Accordingly, the court providently exercised its discretion in granting the plaintiffs’ motion pursuant to CPLR 3126 to strike the defendants’ answer and for leave to enter a default judgment against the defendants.

Balkin, J.P., Austin, Sgroi and LaSalle, JJ., concur.