S. H. Kress-Shoreview, Inc. v. Kleiman

58 A.D.2d 763, 396 N.Y.S.2d 244, 1977 N.Y. App. Div. LEXIS 12920

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 7, 1977
• Status: Published

Opinion

Order, Supreme Court, New York County, entered April 28, 1977, striking defendant’s answer conditionally and affording defendant the opportunity to cure the default by producing certain documents at Special Term, unanimously affirmed, without cost and without disbursements. Special Term by order entered October 9, 1975, directed defendant to make his books and records for certain years available for discovery and inspection within a limited time. By order entered October 1, 1976, Special Term, inter alia, directed defendant, together with his books and records, to appear for examination before trial. Finally, by order entered April 28, 1977 (the order appealed from herein), Special Term struck the defendant’s answer for failure to produce those books and records, but afforded defendant an opportunity to cure the default. On this record it is clear that defendant is seeking to delay production of the records and has ignored court orders to produce same. Special Term properly exercised its discretion in conditionally striking the answer (CPLR 3126, subd [3]). However, we afford defendant one final opportunity to cure his default by producing the documents at Special Term, Part II, at 9:30 a.m. on July 18, 1977. Upon completion of production, but no later than August 1, 1977, an order may be settled at Special Term reinstating the answer. The oral application by defendant-appellant to submit a supplemental record is granted. Concur—Murphy, P. J., Lupiano, Birns and Capozzoli, JJ.