Ritter Foundation, Inc. v. Tebele

222 A.D.2d 355, 635 N.Y.S.2d 628, 1995 N.Y. App. Div. LEXIS 13742

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 28, 1995
• Status: Published

Opinion

—Order, Supreme Court, New York County (Herman Cahn, J.), entered July 5, 1995, which struck plaintiff’s interrogatories, and denied plaintiff’s motion to strike defendant’s answer, unanimously reversed, on the law, and plaintiff’s motion to strike defendant’s answer is granted, with costs.

This action to enforce a money judgment was commenced in September 1993. On August 22, 1994, plaintiff served interrogatories to which defendant did not respond. Five months later, in January 1995, plaintiff moved for an order compelling disclosure, which was granted, requiring service of a response to the interrogatories within ten days of March 2, 1995. On April 19, 1995, defendant served plaintiff with unresponsive and incomplete replies, which were formally rejected. Plaintiff then moved to strike the defendant’s answer pursuant to CPLR 3126.

Although the defendant never moved to strike the interrogatories, or otherwise objected to either the form or the content of the questions posed, the IAS Court denied plaintiff’s motion to strike defendant’s pleading, and held instead that "[a]ll of the motions to strike interrogatories [are] granted in [their] entirety.” This was an abuse of discretion.

While the striking of a pleading pursuant to CPLR 3126 for failure to comply with an order of disclosure is an extreme and drastic remedy, here it is warranted by defendant’s defiance of the demand for interrogatories for more than seven months, especially since a court order compelling disclosure was issued more than one month prior to defendant’s incomplete and unresponsive answers (CPLR 3126; Zletz v Wetanson, 67 NY2d 711; Corsini v U-Haul Intl., 212 AD2d 288; Henry Rosenfeld, Inc. v Bower & Gardner, 161 AD2d 374). Concur — Murphy, P. J., Rosenberger, Wallach, Asch and Tom, JJ.