| Joe DeMartino Mason Contrs. & Sons, Inc. v Main Plaza RealtyCo. |
| 2007 NY Slip Op 07663 [44 AD3d 716] |
| October 9, 2007 |
| Appellate Division, Second Department |
| Joe DeMartino Mason Contractors & Sons, Inc.,Appellant, v Main Plaza Realty Co. et al., Respondents, et al.,Defendants. |
—[*1] Tanenbaum Associates, LLP, Bayside, N.Y. (Mark Tanenbaum of counsel), for respondentsMain Plaza Realty Co. and Joseph Tanenbaum. Jaspan Schlesinger Hoffman, LLP, Garden City, N.Y. (Steven R. Schlesinger andChristopher E. Vatter of counsel), for respondent Pat Pescatore.
In an action, inter alia, to foreclose a mechanic's lien, the plaintiff appeals, as limited by itsbrief, from so much of an order of the Supreme Court, Queens County (Hart, J.), dated June 28,2006, as granted the motion of the defendants Main Plaza Realty Co., Pat Pescatore, and JosephTanenbaum pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise ofdiscretion, with one bill of costs payable by the respondents appearing separately and filingseparate briefs, and the motion to dismiss the complaint insofar as asserted against therespondents is denied.
While the nature and degree of the penalty to be imposed on a motion pursuant to CPLR3126 is a matter generally left to the discretion of the Supreme Court (see Kingsley vKantor, 265 AD2d 529 [1999]), to invoke the drastic remedy of striking a pleading, a courtmust determine that the party's failure to comply with discovery demands was the result ofwillful and contumacious conduct (see CPLR 3126 [3]; Gateway Tit. & Abstract, Inc. v Your HomeFunding, Inc., 40 AD3d 919 [2007]; [*2]Nieves v City of New York, 35AD3d 557 [2006]; Cestaro vChin, 20 AD3d 500, 502 [2005]). The record does not support the moving defendants'contentions that the plaintiff's failure to respond to their demand for documents and to theirnotice to take a deposition was the result of willful and contumacious conduct. Accordingly, theSupreme Court improvidently exercised its discretion in granting the motion pursuant to CPLR3126 to dismiss the complaint insofar as asserted against the respondents. Santucci, J.P.,Goldstein, Dillon and Angiolillo, JJ., concur.