Royal Caterers, LLC v Marine Midland

2004 NYSlipOp 05432

June 21, 2004

Appellate Division, Second Department

As corrected through Wednesday, August 25, 2004

Royal Caterers, LLC, et al., Appellants, v Marine Midland et al., Respondents.

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In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Pagones, J.), dated July 29, 2002, which granted the motion of the defendant Leonard Weiner, in effect, pursuant to CPLR 3126 to dismiss the complaint for failing to comply with court-ordered discovery.

Ordered that the order is affirmed, with costs.

The plaintiffs' repeated failure to comply with court-ordered discovery and their failure to timely pay monetary sanctions imposed was clearly willful, deliberate, and contumacious conduct. Thus, the Supreme Court, providently exercised its discretion in dismissing their complaint (see Kihl v Pfeffer, 94 NY2d 118, 120-123 [1999]; Russell v B&B Indus., 309 AD2d 914 [2003]; Vanalst v City of New York, 302 AD2d 515 [2003]). Florio, J.P., Luciano, Townes and Fisher, JJ., concur.