Miller v. Duffy

126 A.D.2d 527, 510 N.Y.S.2d 651, 1987 N.Y. App. Div. LEXIS 41664

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 12, 1987
• Status: Published

Opinions

—In an action, inter alia, for a judgment declaring that an offering plan to convert certain residential premises to cooperative ownership was fraudulently declared effective, the plaintiffs appeal from an order of the Supreme Court, Kings County (Hurowitz, J.), dated April 23, 1985, which denied their motion pursuant to CPLR 3126 to strike the defendants’ answer on the ground of the defendants’ failure to respond to interrogatories served by them and for summary judgment on their behalf.

Ordered that the order is modified by adding a provision thereto that the motion is denied on condition that each defendant personally pay $500 (for a total of $1,500) in sanctions to the plaintiffs, that each defendant serves an amended answer to the plaintiffs’ interrogatories on behalf of that defendant individually, and that the defendants provide the plaintiffs with a copy of the cooperative offering plan, and that, in the event those conditions are not complied with, the motion is granted and the defendants’ answer is stricken. As so modified, the order is affirmed, with costs to the plaintiffs. The defendants’ time to comply with the aforenoted conditions is extended until 30 days after service upon them of a copy of this decision and order, with notice of entry.

In an attempt to comply with an order of the Supreme Court, Kings County (Bernstein, J.), dated November 26, 1984, the defendants, on or about December 27, 1984, forwarded to the plaintiffs’ attorney a check for costs and served their answers to the plaintiffs’ interrogatories. The plaintiffs’ counsel returned the check and rejected the proffered answers as "cursory, superficial, incomplete and unresponsive to the interrogatories and/or instructions preceding the interrogateries”. The plaintiffs thereupon moved for an unconditional order imposing sanctions against the defendants for failing to respond to interrogatories duly served and awarding the plaintiffs summary judgment.

It is well settled that the overriding goal of CPLR article 31 is not punitive but, rather, the liberal and full disclosure of all evidence which is material and necessary or relevant to the issues to be tried (see, Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406-407; Baker v General Mills Fun Group, 101 Misc 2d 193, 197). Moreover, trial courts are vested with broad discretion in supervising disclosure and their determination to impose sanctions for conduct which frustrates the disclosure scheme of the CPLR must not be disturbed absent a clear abuse of discretion (see, Zletz v Wetanson, 67 NY2d 711, 712; Associated Mut. Ins. Co. v Dyland Tavern, 105 AD2d 892, 893).

The record before us reveals no such clear abuse of discretion. The fact that the plaintiffs were dissatisfied with the answers proffered by the defendants is an insufficient basis upon which to conclude that the defendants willfully and contumaciously failed to comply with a court order compelling disclosure (see, Zletz v Wetanson, supra; Delaney v Automated Bread Corp., 110 AD2d 677, 678). Under the facts and circumstances of this case, we conclude that the defendants should be afforded a final opportunity to satisfactorily comply with the disclosure requested within the time we have prescribed. However, the order denying the plaintiffs’ motion has been modified to impose certain conditions upon the denial of the plaintiffs’ motion.

In the event the defendants fail to so comply, their answer shall be stricken. Niehoff, Weinstein and Spatt, JJ., concur.