Ye Wu v. Xiao Qing Li

2019 NY Slip Op 4994

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 19, 2019
• Docket: Index No. 711382/15
• Status: Published

Opinion

Ye Wu v Xiao Qing Li (2019 NY Slip Op 04994)

Ye Wu v Xiao Qing Li

2019 NY Slip Op 04994

Decided on June 19, 2019

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 19, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JOHN M. LEVENTHAL
SYLVIA O. HINDS-RADIX
COLLEEN D. DUFFY, JJ.

2017-10398
(Index No. 711382/15)

[*1]Ye Wu, respondent,

v

Xiao Qing Li, etc., appellant.

Kaufman Borgeest & Ryan LLP, Valhalla, NY (Rebecca A. Barrett and Jacqueline Mandell of counsel), for appellant.

Law Office of Ming Hai, P.C., Flushing, NY (Paul Siegert of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for defamation, the defendant appeals from an order of the Supreme Court, Queens County (Diccia T. Pineda-Kirwan, J.), dated August 23, 2017. The order, insofar as appealed from, denied the defendant's motion, inter alia, pursuant to CPLR 3126 to dismiss the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action after approval of her I-360 petition for legal permanent residence was revoked due to statements made by the defendant to the United States Citizenship and Immigration Services. The defendant moved, inter alia, pursuant to CPLR 3126 to dismiss the complaint on the ground that the plaintiff had not complied with certain discovery demands. The Supreme Court denied the motion, and the defendant appeals.

Contrary to the defendant's contention, she failed to demonstrate willful or contumacious conduct on the part of the plaintiff (see Walter B. Melvin, Architects, LLC v 24 Aqueduct Lane Condominium, 51 AD3d 784; Zouev v City of New York, 32 AD3d 850; Euro-Central Corp. v Dalsimer, Inc., 22 AD3d 793; Cestaro v Chin, 20 AD3d 500). Under the circumstances, the "drastic remedy" of striking a pleading is not appropriate in this matter (Kanic Realty Assoc., Inc. v Suffolk County Water Auth., 130 AD3d 876, 877 [internal quotation marks omitted]). Moreover, no other remedy is warranted pursuant to CPLR 3126 based upon this record.

The defendant's remaining contentions are without merit.

Accordingly, we agree with the Supreme Court's denial of the defendant's motion, inter alia, pursuant to CPLR 3126 to dismiss the complaint.

DILLON, J.P., LEVENTHAL, HINDS-RADIX and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court