| Anonymous v Duane Reade, Inc. |
| 2008 NY Slip Op 01903 [49 AD3d 479] |
| March 4, 2008 |
| Appellate Division, Second Department |
| Anonymous, Respondent, v Duane Reade, Inc.,Appellant. |
—[*1] Greenberg & Greenberg, LLP, New York, N.Y. (Simon Q. Ramone of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of fiduciary duty and violation of 8NYCRR 29.1, the defendant appeals, as limited by its brief, from (1) so much of an order of theSupreme Court, Kings County (Jacobson, J.), dated November 14, 2006, as denied its motionpursuant to CPLR 3126, among other things, to dismiss the complaint, and (2) so much of anorder of the same court dated May 9, 2007, as denied its second motion pursuant to CPLR 3126to dismiss the complaint and granted that branch of the plaintiff's cross motion which was forleave to extend the time to serve and file a note of issue.
Ordered that the orders are affirmed insofar as appealed from, with one bill of costs.
The determination of whether to strike a pleading lies within the sound discretion of the trialcourt (see CPLR 3126 [3]; Cianciolo v Trism Specialized Carriers, 274 AD2d369, 370 [2000]; Vancott v Great Atl. & Pac. Tea Co., 271 AD2d 438 [2000]; Brownv United Christian Evangelistic Assn., 270 AD2d 378, 379 [2000]). However, the drasticremedy of striking a pleading is not appropriate absent a clear showing that the failure to complywith discovery demands was willful or contumacious (see CPLR 3126 [3]; Harris vCity of New York, 211 AD2d 663, 664 [1995]). Contrary to the defendant's contentions, ithas failed to make a clear showing that the plaintiff's failure to be deposed was willful orcontumacious.[*2]
Moreover, although the plaintiff admittedly failed toserve a note of issue by the court-ordered deadline, CPLR 3216 is "extremely forgiving"(Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]), in that it "never requires,but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff'sunreasonable neglect to proceed" (Davisv Goodsell, 6 AD3d 382, 383 [2004]; see Di Simone v Good Samaritan Hosp.,100 NY2d 632, 633 [2003]). Under the circumstances of this case, where the parties hadbarely commenced discovery proceedings, and where a motion and cross motion to compeldiscovery were pending at the deadline for the service and filing of the note of issue, the SupremeCourt did not improvidently exercise its discretion in refusing to dismiss the action on the basisof the plaintiff's failure to meet that deadline (see Davis v Goodsell, 6 AD3d 382 [2004]; McCracken v NittoKohki USA, 271 AD2d 510 [2000]; Matter of Simmons v McSimmons, Inc., 261AD2d 547 [1999]).
The defendant's remaining contentions are without merit. Rivera, J.P., Lifson, Ritter andCarni, JJ., concur.