| Savin v Brooklyn Mar. Park Dev. Corp. |
| 2009 NY Slip Op 03502 [61 AD3d 954] |
| April 28, 2009 |
| Appellate Division, Second Department |
| Andrea Savin et al., Respondents, v Brooklyn Marine ParkDevelopment Corp. et al., Appellants, et al., Defendants. |
—[*1] Mitchell Troyetsky, New York, N.Y., for respondents.
In an action, inter alia, to recover damages for personal injuries, the defendants BrooklynMarine Park Development Corp., Delkap Management, Inc., Corp., The Board of Directors ofBrooklyn Marine Park Development Corp., Walter Fraza, Harold Toffel, Sol Melzack, EdwardSpitz, Joan Resta, and Mike Walsh appeal (1) from an order of the Supreme Court, Kings County(Bayne, J.), dated October 24, 2007, which, in effect, denied their motion to vacate the note ofissue filed by the plaintiffs and extend their time to move for summary judgment and granted theplaintiffs' cross motion pursuant to CPLR 3126 to strike their answer, and (2), as limited by theirbrief, from so much of an order of the same court dated May 30, 2008, as denied that branch oftheir motion which was for leave to renew their opposition to the plaintiffs' cross motionpursuant to CPLR 3126 to strike their answer.
Ordered that the order dated October 24, 2007, is affirmed; and it is further,
Ordered that the order dated May 30, 2008, is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiffs.
"Generally, the nature and degree of the penalty to be imposed pursuant to CPLR 3126against a party who refuses to comply with court-ordered discovery is a matter within thediscretion of the court. A determination to impose sanctions for conduct which frustrates thedisclosure scheme of the CPLR [*2]should not be disturbedabsent an improvident exercise of discretion" (Duncan v Hebb, 47 AD3d 871, 871 [2008] [internal quotationmarks and citation omitted]). Although actions should be resolved on the merits wheneverpossible, where the conduct of the resisting party is shown to be willful and contumacious, thestriking of a pleading is warranted (seeMartin v City of New York, 46 AD3d 635 [2007]; Maiorino v City of New York, 39 AD3d 601 [2007]). "Willful andcontumacious conduct may be inferred from a party's repeated failure to comply withcourt-ordered discovery, coupled with inadequate explanations for the failures to comply"(Duncan v Hebb, 47 AD3d at 871 [internal quotations marks and citations omitted]; see Allen v Calleja, 56 AD3d 497[2008]).
Here, the Supreme Court did not improvidently exercise its discretion in striking theappellants' answer. The appellants repeatedly failed to comply with court orders directing theproduction of discovery documents and witnesses for examinations before trial, and failed toprovide reasonable excuses to justify those failures.
The Supreme Court also did not improvidently exercise its discretion in denying that branchof the appellants' motion which was to vacate the note of issue filed by the plaintiffs and extendtheir time to move for summary judgment. The certificate of readiness contained nomisstatements or material errors and it was the appellants' own failures to timely comply withcourt orders and discovery demands that delayed the completion of discovery (see Lynch v Vollono, 6 AD3d 505[2004]; Ford v J.R.D. Mgt. Corp., 238 AD2d 307 [1997]; Mardiros v Ghaly, 206AD2d 413, 414 [1994]).
The Supreme Court properly denied that branch of the appellants' motion which was forleave to renew their opposition to the plaintiffs' cross motion to strike their answer. A motion forleave to renew "shall be based upon new facts not offered on the prior motion that would changethe prior determination" (CPLR 2221 [e] [2]) and "shall contain reasonable justification for thefailure to present such facts on the prior motion" (CPLR 2221 [e] [3]; see Chernysheva v Pinchuck, 57 AD3d936 [2008]; Dinten-Quiros vBrown, 49 AD3d 588 [2008]; Madison v Tahir, 45 AD3d 744 [2007]). Here, the appellants didnot provide a reasonable justification for their failure to present the new facts on the originalmotion. Moreover, the materials submitted in support of that branch of the appellants' motionwhich was for leave to renew would not have altered the court's original determination.
The appellants' remaining contentions are either not properly before this Court or withoutmerit. Rivera, J.P., Angiolillo, Eng and Belen, JJ., concur.