| Brown v Astoria Fed. Sav. |
| 2008 NY Slip Op 04824 [51 AD3d 961] |
| May 27, 2008 |
| Appellate Division, Second Department |
| Irving Brown, Appellant, v Astoria Federal Savings,Respondent. |
—[*1] O'Reilly, Marsh & Corteselli, P.C., Garden City, N.Y. (Arthur T. Walsh of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract and defamation, theplaintiff appeals from an order of the Supreme Court, Kings County (Harkavy, J.), dated March28, 2007, which granted the defendant's motion pursuant to 22 NYCRR 202.21 to vacate the noteof issue and certificate of readiness and pursuant to CPLR 3126 to dismiss the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff's certificate of readiness incorrectly stated that all pretrial discovery had beencompleted. Because this was a misstatement of a material fact, the filing of the note of issue wasa nullity, and that branch of the defendant's motion which was to vacate the note of issue andcertificate of readiness was properly granted (see 22 NYCRR 202.21 [e]; Gregory vFord Motor Credit Co., 298 AD2d 496, 497 [2002]; Drapaniotis v 36-08 33rd St. Corp.,288 AD2d 254 [2001]; Macancela v Pekurar, 286 AD2d 320, 321 [2001]).[*2]
Furthermore, that branch of the defendant's motion whichwas to dismiss the complaint was properly granted. The nature and degree of the penalty to beimposed pursuant to CPLR 3126 lies within the sound discretion of the trial court (see Kihl vPfeffer, 94 NY2d 118, 122-123 [1999]; McArthur v New York City Hous. Auth., 48 AD3d 431 [2008]; Rowell v Joyce, 10 AD3d 601[2004]). Although dismissing a complaint pursuant to CPLR 3126 (3) is a drastic remedy, it iswarranted when a party's conduct is shown to be willful and contumacious (see Suazo-Alvarez v Nordlaw, LLC, 48AD3d 670 [2008]; McArthur vNew York City Hous. Auth., 48 AD3d 431 [2008]; Sowerby v Camarda, 20 AD3d 411 [2005]). The willful andcontumacious nature of the conduct of the plaintiff, a pro se litigant, can be inferred from hisrefusal to submit to an oral deposition and to attend a preliminary conference, and from hisfailure to respond to certain discovery demands, coupled with inadequate explanations for thefailures to comply (see Horne vSwimquip, Inc., 36 AD3d 859, 861 [2007]; Sowerby v Camarda, 20 AD3d 411 [2005]; Devito v J & J Towing, Inc., 17 AD3d624, 625 [2005]).
The plaintiff's remaining contentions are either improperly raised for the first time on appeal(see Edme v Tanenbaum, 50 AD3d624 [2008]; Glass v Estate of Gold,48 AD3d 746 [2008]; Ahr vKarolewski, 48 AD3d 719 [2008]) or without merit. Skelos, J.P., Santucci, Covello,McCarthy and Chambers, JJ., concur.