Novis v. Benes

268 A.D.2d 464, 701 N.Y.S.2d 914, 2000 N.Y. App. Div. LEXIS 560

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 18, 2000
• Status: Published

Opinion

—In an action, inter alla, to recover a gift given in contemplation of marriage, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated January 25, 1999, which granted the defendant’s motion pursuant to CPLR 3126 to dismiss the complaint.

Ordered that the order is modified, as a matter of discretion, by deleting the provision thereof granting the motion in its entirety and substituting therefor a provision granting that branch of the motion which was to dismiss the third through seventh causes of action, and otherwise denying the motion; as so modified, the order is affirmed, with costs to the respondent, and the first and second causes of action are reinstated.

While the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter of discretion, the drastic remedy of striking a pleading is inappropriate absent a clear showing that the failure to comply with discovery demands was willful, contumacious, or in bad faith (see, Kubacka v Town of N. Hempstead, 240 AD2d 374). Here, the plaintiffs failure to respond to discovery requests with respect to his third through seventh causes of action was willful and contumacious. Thus, that branch of the defendant’s motion which was to dismiss those causes of action was properly granted. However, we conclude that no such finding of willful and contumacious behavior can be found relating to. the plaintiffs failure to respond to discovery requests relating to the first and second causes of action. Accordingly, those causes of action should be reinstated. Bracken, J. P., Santucci, Altman, Friedmann and H. Miller, JJ., concur.