Whitley v. Industrial Funding Corp.

8 A.D.3d 963, 778 N.Y.S.2d 246, 2004 N.Y. App. Div. LEXIS 8044

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 2004
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J), entered February 6, 2003. The order denied plaintiffs motion to strike the amended answer of defendant Kenneth Fieri and for judgment against him.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting plaintiffs motion, striking the amended answer of defendant Kenneth Fieri and granting plaintiff judgment against him and as modified the order is affirmed with costs to plaintiff, and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: We agree with plaintiff that Supreme Court erred in denying her motion to strike the amended answer of Kenneth Fieri (defendant) pursuant to CPLR 3126 and for judgment against him, and thus we modify the order accordingly. Upon reviewing the discovery order of the Referee pursuant to CPLR 3104 (d) and properly determining that defendant failed to comply with CPLR 3122 (c), the court nevertheless abused its discretion in affording defendant one last opportunity to comply with the statute. In any event, we further conclude that plaintiffs motion to strike defendant’s amended answer and for judgment against defendant should have been granted based on defendant’s willful and contumacious conduct (see generally Kihl v Pfeffer, 94 NY2d 118, 122 [1999]; Lakewood Constr. Co. v Brody, 1 AD3d 1007 [2003]). We remit the matter to Supreme Court for a hearing on damages. Present—Pigott, Jr., P.J., Green, Wisner, Scudder and Gorski, JJ.