| Pangea Farm, Inc. v Sack |
| 2008 NY Slip Op 04811 [51 AD3d 1352] |
| May 29, 2008 |
| Appellate Division, Third Department |
| Pangea Farm, Inc., Appellant, v Leeny Sack,Respondent. |
—[*1] Williamson, Clune & Stevens, Ithaca (John H. Hanrahan III of counsel), forrespondent.
Spain, J.P. Appeal from an order of the Supreme Court (Dowd, J.), entered March 15, 2007in Chenango County, which, among other things, denied plaintiff's motion to strike defendant'sanswer.
Plaintiff commenced this action against defendant in September 2003 seeking to recoverapproximately $3,100 allegedly obtained by defendant through breach of contract, unjustenrichment and/or conversion.[FN1]Defendant answered and raised various affirmative defenses, an amended complaint was servedand discovery ensued. When that process stalled, plaintiff sought Supreme Court's assistance and,ultimately, a scheduling order was filed directing that all [*2]discovery be completed by June 30, 2006. In the interim, defendantdischarged her attorney and new counsel was retained. Correspondence and discussions betweencounsel for the parties continued and additional discovery materials were provided bydefendant—albeit after the court-ordered deadline.
Thereafter, in October 2006, plaintiff moved to strike defendant's answer for failing to timelycomply with the scheduling order. Defendant opposed that relief and cross-moved for leave toserve an amended answer.[FN2]Supreme Court, in a bench ruling, denied plaintiff's motion and granted defendant's cross motionto serve an amended answer, with the proviso that such pleading not include any claim forpunitive damages. When defense counsel failed to timely submit a proposed order, plaintiffsought to have defendant's cross motion deemed abandoned. Supreme Court's bench decisioneventually was reduced to the order from which this appeal is taken, following which plaintiffmoved to strike those portions of defendant's amended answer not in compliance with SupremeCourt's March 2007 order. Defendant responded by withdrawing the amended answer. Plaintiffnow appeals, contending that Supreme Court abused its discretion in failing to strike defendant'sanswer.
Where, as here, a party fails to comply with a discovery order, CPLR 3126 authorizes thecourt to fashion an appropriate remedy, the nature and degree of which is a matter committed tothe court's sound discretion (see Gokeyv DeCicco, 24 AD3d 860, 861 [2005]; Appler v Riverview Obstetrics & Gynecology, P.C., 9 AD3d 577,578 [2004]; Cavanaugh v Russell SageColl., 4 AD3d 660 [2004]). The penalty imposed will not be disturbed absent a clearabuse of the court's discretion (see Cavanaugh v Russell Sage Coll., 4 AD3d at 660;Saratoga Harness Racing v Roemer, 290 AD2d 928, 929 [2002]), and "the drasticsanction of dismissal of an answer should only be imposed where the moving party makes a clearshowing that the defendant willfully or contumaciously failed to comply with an order fordisclosure" (Fraracci v Lasouska, 283 AD2d 735, 736 [2001]; see Altu v Clark, 20 AD3d 749,750 [2005]; Brothers v Bunkoff Gen. Contrs., 296 AD2d 764, 765 [2002]; Robbins vNavistar Intl. Transp. Corp., 224 AD2d 912, 913 [1996]).
Here, although plaintiff portrays this action as a relatively straightforward breach of contractclaim, it appears that the resolution of this matter is, to some extent, intertwined with theresolution of the related matrimonial action and contempt proceeding, all of which appear to bepending in Chenango County. Additionally, while the delay here indeed was not insubstantial andnot entirely explained, defendant did discharge her attorney and retain new counsel during thependency of this action, which no doubt exacerbated the already existing delay. Further, asevidenced by the correspondence between the parties, there were ongoing attempts to resolve theoutstanding discovery demands, as well as efforts to settle this matter. Under such circumstances,we cannot say that defendant's failure to timely comply with the scheduling order is necessarilythe product of "a deliberately evasive, misleading and uncooperative course of conduct or adetermined strategy of delay that would be deserving of the most vehement condemnation"(Altu v Clark, 20 AD3d at 751 [internal quotation marks and citation omitted]). Wetherefore conclude that Supreme Court, which was well aware of the various actions pending[*3]between the parties and the full history thereof, did not abuseits discretion in denying plaintiff's motion to strike defendant's answer.
Lahtinen, Kane, Malone Jr. and Stein, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: Plaintiff's principals includeNorman Rosenberg (hereinafter Rosenberg), Helen Rosenberg, his former wife, and defendant,his current wife. In addition to the instant action, there also is a pending matrimonial actionbetween Rosenberg and defendant, as well as a contempt proceeding against Rosenberg for hispurported failure to pay court-ordered interim maintenance.
Footnote 2: Although the cross motion isdenominated as one for leave to serve a "second" amended answer, it does not appear thatdefendant previously served an amended answer.