

Mears v Long (2017 NY Slip Op 02782)





Mears v Long


2017 NY Slip Op 02782


Decided on April 12, 2017


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 April 12, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.


2015-06897
 (Index No. 16118/13)

[*1]Robert Mears, et al., respondents, 
vChristopher Long, also known as Chris Long, et al., appellants.


Rabinowitz, Galina & Rosen, Mineola, NY (Gayle A. Rosen of counsel), for appellants.
Anthony W. Core, P.C., Westbury, NY (Michael E. White and Bradley Slover of counsel), for respondents.

DECISION & ORDER
In an action, inter alia, to recover damages for breach of fiduciary duty and conversion, the defendants appeal from an order of the Supreme Court, Suffolk County (Hudson, J.), dated May 14, 2015, which granted the plaintiffs' motion pursuant to CPLR 3126 to strike their answer and for leave to enter a default judgment against them based on their failure to comply with court-ordered discovery.
ORDERED that the order is affirmed, with costs.
The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is within the broad discretion of the motion court (see Parker Waichman, LLP v Laraia, 131 AD3d 1215, 1216; Lazar, Saders, Thaler & Assoc., LLP v Lazar, 131 AD3d 1133; Wolf v Flowers, 122 AD3d 728). The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands or court-ordered discovery is willful and contumacious (see Lucas v Stam, 147 AD3d 921; Shah v Oral Cancer Prevention Int., Inc., 138 AD3d 722, 724; Lazar, Saders, Thaler & Assoc., LLP v Lazar, 131 AD3d at 1133; Brandenburg v County of Rockland Sewer Dist. #1, State of N.Y., 127 AD3d 680, 681). The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse (see Lucas v Stam, 147 AD3d 921; Lazar, Saders, Thaler & Assoc., LLP v Lazar, 131 AD3d at 1134; Brandenburg v County of Rockland Sewer Dist. #1, State of N.Y., 127 AD3d at 680).
Here, the defendants' willful and contumacious conduct can be inferred from their repeated failures, without an adequate excuse, to comply with discovery demands and the Supreme Court's discovery orders (see Lucas v Stam, 147 AD3d 921; Parker Waichman, LLP v Laraia, 131 AD3d at 1216; Lazar, Saders, Thaler & Assoc., LLP v Lazar, 131 AD3d at 1134; Brandenburg v County of Rockland Sewer Dist. #1, State of N.Y., 127 AD3d at 680). Accordingly, the court providently exercised its discretion in granting the plaintiffs' motion pursuant to CPLR 3126 to strike the defendants' answer and for leave to enter a default judgment against the defendants.
BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


