Sindeband v. McCleod

226 A.D.2d 623, 641 N.Y.S.2d 127, 1996 N.Y. App. Div. LEXIS 4332

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 22, 1996
• Status: Published

Opinion

In an action to recover damages for breach of contract for the sale of realty, the defendants appeal from a judgment of the Supreme Court, Suffolk County (Seidell, J.), dated July 28, 1994, which, upon granting the plaintiff’s motion to strike their answer and counterclaim, is in favor of the plaintiff and against them in the principal sum of $10,000. The appeal brings up for review so much of an order of the same court, dated August 4, 1994, as, upon in effect granting reargument, adhered to the original determination (see, CPLR 5517 [b]).

Ordered that the appeal from the judgment is dismissed, as the judgment was superseded by the order made upon reargument; and it is further,

Ordered that the order dated August 4, 1994, is affirmed insofar as reviewed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The record supports the Supreme Court’s determination that the defendants’ failure to comply with court-ordered discovery was deliberate and contumacious (see, Ortiz v Weaver, 188 AD2d 290; Forman v Jamesway Corp., 175 AD2d 514; Scharlack v Richmond Mem. Hosp., 127 AD2d 580).

It should not be necessary for parties to bring on repeated motions for the production of court-ordered documents. In an earlier order, the court warned that it would not tolerate any further delay in the production of court-ordered documents, and that noncompliance might result in the striking of a pleading.

Under the circumstances we have no difficulty in upholding the court’s determination and therefore conclude that the Supreme Court properly struck the defendants’ answer and awarded judgment to the plaintiff (see, Ortiz v Weaver, supra; Battaglia v Hofmeister, 100 AD2d 833). Rosenblatt, J. P., O’Brien, Ritter and Goldstein, JJ., concur.