Pontas Renovation, Inc. v. Kitano Arms Corp.

224 A.D.2d 349, 638 N.Y.S.2d 64, 1996 N.Y. App. Div. LEXIS 1451

Opinion

—Order, Supreme Court, New York County (Elliott Wilk, J.), entered December 15, 1994, which, inter alia, granted defendant Kitano Arms Corporation’s motion for an order of preclusion as a discovery sanction to the extent of directing that plaintiff make its books available for inspection by defendant Kitano; order, same court and Justice, entered May 22, 1995, which dismissed plaintiff’s complaint for failure to comply with the order of December 15, 1994; and order, same court and Justice, entered August 22, 1995, which denied plaintiffs motion to extend a notice of pendency, unanimously affirmed, with costs.

Plaintiffs corporate general ledger is relevant, and the order that plaintiff disclose it was a proper exercise of discretion. Plaintiffs counsel candidly stated that plaintiff was refusing to produce the ledger because it had unilaterally determined that it was immaterial. There was, therefore, willful non-compliance with a prior court order directing disclosure, justifying the sanction of dismissal (see, Zletz v Wetanson, 67 NY2d 711). Given this background, there was no "good cause shown” (CPLR 6513) to warrant extending plaintiffs notice of pendency. Concur — Sullivan, J. P., Milonas, Rosenberger, Kupferman and Nardelli, JJ.