Shapiro v. Kurtzman

32 A.D.3d 508, 820 N.Y.S.2d 311

Opinions

In an action, inter alia, to recover the proceeds of certain loans, the plaintiff appeals from an order of the Supreme Court, Rockland County (Sherwood, J.), dated July 13, 2004, which granted the motion of the defendant Deborah Shapiro Kurtzman pursuant to CPLR 3126 to strike the pleadings and dismiss the second amended complaint insofar as asserted against her.

Ordered that the order is affirmed, with costs.

“To invoke ‘the drastic remedy of striking a pleading, the court must determine that the party’s failure to comply with a disclosure order was the result of willful, deliberate, and contumacious conduct or its equivalent’ ” (Emanuel v Broadway Mall Props., 293 AD2d 708, 709 [2002], quoting Poulas v U-Haul Intl., 288 AD2d 202 [2001]). However, where a party disobeys a court order and by his or her conduct frustrates the disclosure scheme of the CPLR, as the plaintiff did here, dismissal of a pleading is within the broad discretion of the court (see Kihl v Pfeffer, 94 NY2d 118, 122-123 [1999]; Ritter Found. v Tebele, 222 AD2d 355 [1995]). Here, the plaintiff’s failure to comply with a court order directing disclosure, and his delay in providing responses to the respondent’s discovery demands, supported an inference that his failure to provide disclosure was willful and contumacious (see Emanuel v Broadway Mall Props., supra). Accordingly, the Supreme Court providently exercised its discretion in dismissing the plaintiff’s second amended complaint insofar as asserted against the respondent. Schmidt, J.P., Santucci and Mastro, JJ., concur.