| Doherty v Schuyler Hills, Inc. |
| 2008 NY Slip Op 08219 [55 AD3d 1174] |
| October 30, 2008 |
| Appellate Division, Third Department |
| Daniel O. Doherty et al., Respondents, v Schuyler Hills, Inc.,Appellant. |
—[*1] Daniel L. Doherty, Albany, for respondents.
Kane, J. Appeals (1) from an order of the Supreme Court (Platkin, J.), entered May 17, 2007 inAlbany County, which, among other things, set forth a date certain for depositions, (2) from an order ofsaid court, entered December 6, 2007, which granted the plaintiffs' motion to strike defendant'sanswer, and (3) from the judgment entered thereon.
Plaintiffs commenced this action seeking title, by adverse possession, to a strip of land owned bydefendant. After issue was joined in April 2006, plaintiffs served discovery demands, includingdeposition notices. Supreme Court (McCarthy, J.) issued a scheduling order in July 2006. InSeptember 2006, plaintiffs moved for an order pursuant to CPLR 3126 dismissing defendant's answerbased on defendant's failure to respond to discovery demands in accordance with the scheduling order.The court denied the motion and issued an amended scheduling order in October 2006. Defendantfailed to schedule depositions in compliance with that order, as well as a second amended order issuedin December 2006, a third amended order issued in February 2007 and a fourth amended order issuedin May 2007. Plaintiffs again moved for an order dismissing the answer and entering a default judgmentagainst defendant. Supreme Court (Platkin, J.) granted the motion. Defendant appeals from the May2007 amended scheduling order, the order granting plaintiffs' motion and the judgment entered thereon.
Defendant's appeals from the May 2007 scheduling order and the order granting plaintiffs' motionmust be dismissed because its right to appeal those intermediate nonfinal orders terminated upon entryof the final judgment (see Warnke vWarner-Lambert Co., 21 AD3d 654, [*2]655 n 2 [2005]).However, the appeal from the final judgment brings up for review these orders (see Neissel v Rensselaer Polytechnic Inst.,54 AD3d 446, 449 n 3 [2008]). Defendant contends that Supreme Court should not haverequired it to produce certain individuals noticed for deposition by plaintiffs as CPLR 3106 (d)permitted defendant to substitute other individuals with information pertaining to the action. Trial courtshave broad discretionary powers to control disclosure, prompting appellate interference only where thatdiscretion was clearly abused (see Geary v Hunton & Williams, 245 AD2d 936, 938 [1997]).A court may properly order disclosure even if a party would not have agreed to the method or form ofthat disclosure (see id.). Here, the court did not abuse its discretion in requiring defendant toproduce for deposition its president and vice-president, rather than permitting defendant to rely solelyon two individuals who were not corporate officers and had no demonstrated official capacity to speakor act on defendant's behalf.
Supreme Court did not err in granting plaintiffs' motion to strike the answer and enter a defaultjudgment against defendant. CPLR 3126 authorizes courts to exercise discretion in fashioning anappropriate remedy when a party refuses to obey an order of disclosure or willfully fails to discloseinformation (see Pangea Farm, Inc. vSack, 51 AD3d 1352, 1354 [2008]; Cavanaugh v Russell Sage Coll., 4 AD3d 660, 660 [2004]). Striking apleading is one remedy provided by the Legislature (see CPLR 3126 [3]; see also Kihl vPfeffer, 94 NY2d 118, 123 [1999]). Despite a general policy favoring resolution of disputes on themerits, this Court will not disturb a trial court's choice of remedy absent a clear abuse of discretion(see Cavanaugh v Russell Sage Coll., 4 AD3d at 660). The party requesting that a pleading bestruck must demonstrate that the offending party's failure to comply was willful and contumacious,which can be inferred from a pattern of noncompliance (see Du Valle v Swan Lake Resort Hotel, LLC, 26 AD3d 616, 617-618[2006]).
The record here demonstrates that defendant repeatedly failed to respond to plaintiffs' requests toschedule depositions, over a course of several months, even after multiple court orders set deadlines forthose depositions. The May 2007 order, entered after a compliance conference, directed defendant toproduce four named individuals for depositions at plaintiffs' counsel's office on a particular date, as wellas confirm in writing, one week prior, defense counsel's intention to appear for depositions. Defensecounsel did not provide written notice by the court-ordered deadline, nor by the extended deadlinepermitted by plaintiffs' counsel. Thereafter, plaintiffs informed defense counsel that they intended toproceed with motion practice to address this noncompliance with the scheduling orders. Nevertheless,the day prior to the scheduled depositions, defense counsel expressed his intent to produce three of thefour witnesses but suggested an alternate location. Plaintiffs responded, reiterating their intention toengage in motion practice. Despite the failure to give timely written notice, defense counsel and threewitnesses appeared at plaintiffs' counsel's office for the deposition; counsel was not present and thestenographer had been cancelled. Defendant engaged in a pattern of noncompliance, without anysuitable excuse, giving rise to an inference of willfulness and contumaciousness, thus justifying SupremeCourt's order striking the answer and entering a default judgment in plaintiffs' favor (cf. Du Valle vSwan Lake Resort Hotel, LLC, 26 AD3d at 617-618; Cavanaugh v Russell Sage Coll., 4AD3d at 660; compare Fraracci v Lasouska, 283 AD2d 735, 736-737 [2001]).
Carpinello, Rose and Kavanagh, JJ., concur; Cardona, P.J., not taking part. Ordered that theappeals from the orders entered May 17, 2007 and December 6, [*3]2007 are dismissed. Ordered that the judgment is affirmed, with costs.