Reed v. Jaspan, Ginsberg, Schlesinger, Silverman & Hoffman

283 A.D.2d 630, 724 N.Y.S.2d 912, 2001 N.Y. App. Div. LEXIS 5518

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 2001
• Status: Published

Opinion

—In an action to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Nassau County (Adams, J.), dated September 29, 2000, which denied their motion, inter alia, pursuant to CPLR 3126 (3) to strike the complaint for the plaintiffs’ failure to comply with disclosure.

Ordered that the order is reversed, as a matter of discretion, with costs, the motion is granted, and the complaint is dismissed.

The Supreme Court improvidently exercised its discretion in denying the defendants’ motion to strike the complaint pursuant to CPLR 3126 (3) based upon the plaintiffs’ failure to furnish court-ordered discovery. The plaintiffs’ willful and contumacious conduct can be inferred from their repeated noncompliance with court orders and the inadequate excuses offered for their failure to comply (see, Marks v Westinghouse Elec. Corp., 272 AD2d 304; Espinal v City of New York, 264 AD2d 806; Castrignano v Flynn, 255 AD2d 352). Ritter, J. P., Altman, Friedmann and H. Miller, JJ., concur.