Min Yoon v. Costello

29 A.D.3d 407, 815 N.Y.S.2d 781

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 18, 2006
• Status: Published

Opinion

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered May 2, 2005, which granted plaintiffs motion for discovery sanctions to the extent of striking defendants’ answer and denied defendants’ motion to vacate their default and for leave to move for summary judgment, unanimously affirmed, without costs.

The sanction of striking the answer was warranted in light of defendants’ repeated and persistent failure to comply with several disclosure orders (CPLR 3126). Plaintiff, as the moving party, established that defendants’ failure to comply was willful and contumacious (see Reidel v Ryder TRS, Inc., 13 AD3d 170 [2004]; Pimental v City of New York, 246 AD2d 467 [1998]).

Moreover, defendants failed to demonstrate a reasonable excuse for their default by timely opposing plaintiffs motion or properly seeking an adjournment. The per diem attorney’s failure to appear on the return date in the mistaken belief that the motion would be called later on the calendar, and defense counsel’s purported need to obtain an affidavit from his client’s accountant, who, the motion court subsequently discovered, never served as defendants’ accountant and had never been in possession of any of defendants’ documents, left defendants without a reasonable excuse for their default (see Silverman & Weinraub v Gillon, 1 AD3d 142 [2003]). Concur—Buckley, P.J., Mazzarelli, Friedman, Sweeny and McGuire, JJ.