| Walter B. Melvin, Architects, LLC v 24 Aqueduct LaneCondominium |
| 2008 NY Slip Op 04509 [51 AD3d 784] |
| May 13, 2008 |
| Appellate Division, Second Department |
| Walter B. Melvin, Architects, LLC, Respondent, v 24Aqueduct Lane Condominium, Also Known as 24 Aqueduct Lane Condominium Association,Appellant. |
—[*1] Foster & Wolkind, P.C., New York, N.Y. (Bryan E. Wolkind of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the defendant appeals from(1) an order of the Supreme Court, Westchester County (Donovan, J.), entered April 2, 2007,which granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike itsanswer, directed an inquest on the issue of damages, and directed the plaintiff to file a note ofissue, and (2) an order of the same court entered October 1, 2007, which denied its motion,denominated as one to vacate the prior order, but which was, in actuality, a motion for leave toreargue.
Ordered that the appeal from the order entered October 1, 2007, is dismissed, as no appeallies from an order denying reargument; and it is further,
Ordered that the order entered April 2, 2007, is reversed, on the law and in the exercise ofdiscretion, and that branch of the plaintiff's motion which was to strike the defendant's answer isdenied; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The determination whether to strike a pleading lies within the sound discretion of the trial[*2]court (see CPLR 3126 [3]; Byrne v City of NewYork, 301 AD2d 489, 490 [2003]; Cianciolo v Trism Specialized Carriers, 274AD2d 369, 370 [2000]; Vancott v Great Atl. & Pac. Tea Co., 271 AD2d 438 [2000];Brown v United Christian Evangelistic Assn., 270 AD2d 378, 379 [2000]). However, thedrastic remedy of striking an answer is not appropriate where there is no clear showing that thefailure to comply with discovery demands was willful or contumacious (see CPLR 3126[3]; Harris v City of New York, 211 AD2d 663, 664 [1995]). In this case, the defendantserved a bill of particulars and a response to the plaintiff's notice for discovery and inspection asit was directed to do by court order. While the plaintiff was clearly dissatisfied with the responsesto its demands, there was no showing of a pattern of willful failure to respond to discoverydemands or comply with disclosure orders, so as to justify striking the defendant's answer. Underthe circumstances, an order ruling on the propriety of the defendant's responses to the discoverydemands, and affording the defendant an opportunity to cure any responses found to be deficientwould have been more appropriate.
Moreover, we note that the plaintiff's motion was unsupported by an affirmation of a goodfaith effort to resolve the purported discovery dispute as required by 22 NYCRR 202.7 (a) (2) (see Diel v Rosenfeld, 12 AD3d558 [2004]; Dennis v City of New York, 304 AD2d 611, 613 [2003]; Fanelli vFanelli, 296 AD2d 373 [2002]). Accordingly, the Supreme Court improvidently exercised itsdiscretion in granting that branch of the plaintiff's motion which was to strike the answer,directing an inquest on damages, and directing the plaintiff to file a note of issue.
The parties' remaining contentions are without merit. Rivera, J.P., Lifson, Miller, Carni andEng, JJ., concur.