| Sugar Foods De Mexico v Scientific Scents, LLC |
| 2011 NY Slip Op 07544 [88 AD3d 1194] |
| October 27, 2011 |
| Appellate Division, Third Department |
| Sugar Foods De Mexico, Respondent, v Scientific Scents,LLC, Also Known as Scientific Sents, LLC and Others, Doing Business as Betterbodz andOthers, Appellant. |
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Spain, J. Appeals (1) from an order of the Supreme Court (Nolan Jr., J.), entered April 9,2010 in Saratoga County, which, among other things, granted plaintiff's motion to strikedefendant's answer, and (2) from the judgment entered thereon.
Pursuant to a purchase order placed by defendant in 2006, plaintiff packaged defendant'sseasoning product and shipped it to a distributor in two installments. When defendant failed topay plaintiff despite not rejecting the packaged product, plaintiff commenced an action to collectthe amount due ($148,605.00) with interest, alleging causes of action for goods sold anddelivered and for an account stated. Defendant served an answer denying the claims and assertedcounterclaims for breach of contract and breach of warranties related to plaintiff's alleged [*2]defective packaging of its product.
In December 2008, Supreme Court granted plaintiff's motion for summary judgment ondefendant's liability to it, subject only to the possibility of defendant receiving an offset againstthe amount recovered if defendant were to demonstrate that the packaging produced by plaintiffwere defective, as alleged in the counterclaim. As a result, plaintiff filed discovery demands upondefendant on March 12, 2009, which defendant neither complied with nor objected to. Plaintiffthen moved, among other things, to strike defendant's answer for failure to comply with thosediscovery demands.
By decision and order dated October 23, 2009, Supreme Court, among other things,conditionally granted plaintiff's motion and struck the answer "unless within 30 days of theservice of a copy of this decision and order, with notice of entry, defendant complies withplaintiff's [March 2009] notice for discovery and inspection." Despite being served with notice ofentry of this conditional order, defendant never complied, objected or responded.
More than four months after notice of entry of the conditional order and after a lapse of overa year since plaintiff's discovery demand, plaintiff renewed its motion to strike defendant'sanswer for failure to respond to the court-ordered discovery request. Supreme Court granted themotion to strike defendant's answer "in all aspects for failing to serve discovery responses asdirected by this Court's Order dated October 23, 2009." A default judgment was entered in theSaratoga County Clerk's office for the sum certain demanded in plaintiff's complaint, includinginterest, totaling $199,215.28. Defendant now appeals.
"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 [are] . . .matter[s] committed to the court's sound discretion" (Myers v Community Gen. Hosp. of Sullivan County, 51 AD3d1359, 1360 [2008] [citations omitted]; see Kihl v Pfeffer, 94 NY2d 118, 122-123[1999]; Congleton v United HealthServs. Hosps., 67 AD3d 1148, 1150 [2009]; Pangea Farm, Inc. v Sack, 51 AD3d 1352, 1354 [2008]). "Thepenalty imposed will not be disturbed absent a clear abuse of the court's discretion" (PangeaFarm, Inc. v Sack, 51 AD3d at 1354 [citations omitted]). "Striking a pleading is one remedyprovided by the Legislature (see CPLR 3126 [3])" (Doherty v Schuyler Hills, Inc., 55 AD3d 1174, 1176 [2008]; seeKihl v Pfeffer, 94 NY2d at 123) and, "[d]espite a general policy favoring resolution ofdisputes on the merits," striking is authorized where "[t]he party requesting that a pleading bestruck . . . demonstrate[s] that the offending party's failure to comply was willfuland contumacious, which can be inferred from a pattern of noncompliance" (Doherty vSchuyler Hills, Inc., 55 AD3d at 1176; see VanEtten Oil Co., Inc. v Exotic Flora & Fauna, Ltd., 78 AD3d1438, 1439 [2010]).
Here, defendant had ample opportunity over the course of more than one year to respond toplaintiff's repeated discovery demands, disregarded for over four months Supreme Court's 30-dayconditional order directing compliance and has never objected to any of the requested demands(see CPLR 3122). It has never offered any explanation whatsoever for its completenoncompliance.[FN*]Defendant's argument that a default judgment was improper because the issue [*3]of offset against plaintiff's recovery had not been determined missesthe point that the reason that issue could not be decided is because defendant totally failed torespond to plaintiff's discovery requests or the court's order directed at that very issue. In ourview, Supreme Court did not abuse its discretion or err in granting plaintiff's motion to strike theanswer and entering a default judgment against defendant.
Finally, there is no merit to defendant's claim that the caption of the default judgment isambiguous and, given that it never objected thereto (see CPLR 2001), it is nowforeclosed from raising this issue on appeal (see Bender v Peerless Ins. Co., 36 AD3d 1120, 1127 [2007]).
Peters, J.P., Lahtinen, Stein and Egan Jr., JJ., concur. Ordered that the order and judgmentare affirmed, with costs.
Footnote *: Defendant's assertion in its briefthat, after summary judgment was awarded to plaintiff on liability, defendant's "focus shifted" toissues it raised in its defective packaging counterclaim is specious and nonresponsive. Defendantfails to explain why it did not reply to plaintiff's discovery demands, which themselves werelikewise focused on defendant's counterclaim.