| Colley v Romas |
| 2008 NY Slip Op 03355 [50 AD3d 1338] |
| April 17, 2008 |
| Appellate Division, Third Department |
| Barbara Colley, as Executor of Nicholas T. Sbarra, Deceased,Respondent, v Angelos P. Romas, Appellant. |
—[*1] McDonough & Artz, P.C., Binghamton (Philip J. Artz of counsel), for respondent.
Rose, J. Appeals (1) from an order of the Supreme Court (Lebous, J.), entered February 28,2007 in Broome County, which, among other things, conditionally granted plaintiff's motion tostrike defendant's answer and counterclaims, and (2) from an order of said court, entered April25, 2007 in Broome County, which, among other things, granted plaintiff's cross motion to strikedefendant's answer and counterclaims.
Plaintiff commenced this action for partition, sale and an accounting with regard to certainparcels of real property which defendant, an attorney, had owned as a tenant in common withdecedent. Following a preliminary conference and with the parties' apparent agreement, SupremeCourt issued a preliminary conference order directing that, among other things, they exchangeappraisals of two of the subject properties no later than September 12, 2006 and provide to adesignated accountant within 60 days the information needed to prepare a 2005 income tax returnfor those properties. After defendant failed to comply with this order and two others extendingthe time for compliance, plaintiff moved to strike defendant's answer and counterclaims. OnFebruary 28, 2007, Supreme Court conditionally granted plaintiff's motion, affording defendantyet a fourth opportunity to comply. Instead, defendant moved for a fifth extension, whereuponplaintiff cross-moved for dismissal of defendant's answer and counterclaims for his failure torespond to discovery demands and comply with the conditional order. Supreme Court denieddefendant's motion and granted plaintiff's cross motion.[*2]
While we agree with defendant that his appeal of theorder finally dismissing his answer and counterclaims brings up for review the prior schedulingorders (see CPLR 5501 [a] [1]; Matter of Hebel v West, 25 AD3d 172, 175 n 1 [2005], lvdenied 7 NY3d 706 [2006]), we find no merit in his contention that Supreme Court lackedauthority to direct him to provide an appraisal. Although the record does not reveal whetherappraisals were deemed necessary to establish a minimum selling price, to determine whether anequal or equalized partition could be made or for some other reason, defendant never disputedeither the need for appraisals or Supreme Court's authority to regulate their disclosure(see 22 NYCRR 202.12 [d]; seee.g. Loughran v Cruickshank, 8 AD3d 799, 800-801 [2004]).
All of the remaining issues but one are raised for the first time on appeal and are, therefore,not properly before us (see Herron vEssex Ins. Co., 34 AD3d 913, 914 [2006], lv dismissed 8 NY3d 856 [2007];Connecticut Natl. Bank v Peach Lake Plaza, 204 AD2d 909, 911 [1994]). The onlypreserved issue is defendant's claim that Supreme Court abused its discretion in selecting thesanction of striking his pleadings. The record is clear, however, that he repeatedly disobeyedSupreme Court's orders setting deadlines for disclosure and failed to comply with plaintiff'sdiscovery demands. Thus, the willfulness of defendant's noncompliance is readily apparent fromthe record (see Tleige v Troy Pediatrics, 237 AD2d 772, 774 [1997]; Wolford vCerrone, 184 AD2d 833, 833-834 [1992]), which reflects a deliberate pattern of delaydesigned to postpone the loss of his ownership interest in the subject properties. Accordingly, weconclude that Supreme Court acted within its broad discretion by first granting a conditionalorder of dismissal, and later finally dismissing his answer and counterclaims (see CPLR3126 [3]; Kihl v Pfeffer, 94 NY2d 118, 123 [1999]; Du Valle v Swan Lake Resort Hotel, LLC, 26 AD3d 616, 617-618[2006]; compare Matter of SDR Holdings v Town of Fort Edward, 290 AD2d 696, 698[2002]).
Finally, regarding defendant's concern that dismissal of his answer will preclude anaccounting of the income and expenses of the subject properties, we note that even when therights of the parties are not controverted, the court is still obligated to ensure that there is anaccurate accounting before entry of an interlocutory judgment directing their sale (seeRPAPL 911, 915; see also McVicker v Sarma, 163 AD2d 721, 722 [1990]).
Peters, J.P., Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the orders are affirmed,with costs.