| Diamond State Ins. Co. v Utica First Ins. Co. |
| 2009 NY Slip Op 08703 [67 AD3d 613] |
| November 24, 2009 |
| Appellate Division, First Department |
| Diamond State Insurance Company, as Subrogee of GentryApartments, Inc., Respondent, v Utica First Insurance Company,Appellant. |
—[*1] Steven G. Fauth, New York, for respondent.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered January13, 2009, which, to the extent appealed from as limited by the briefs, granted plaintiff's crossmotion to strike the answer for failure to comply with disclosure obligations, unanimouslyaffirmed, with costs.
This is a subrogation action involving a roof fire. Plaintiff sought to obtain other roofingexclusion claim files in defendant's possession. Defendant insurer has exhibited a pattern ofrepeated noncompliance with orders in this case and by this Court in a prior appeal (see37 AD3d 160 [2007]), giving rise to an inference that its conduct has been willful andcontumacious (see Olmsted v Pizza Hutof Am., Inc., 61 AD3d 1238, 1240-1241 [2009]). Defendant's behavior was particularlyreprehensible because defendant not only violated the motion court's conference orders, but alsoendeavored to undermine an appellate order by limiting its search to only a small percentage ofits potentially relevant files. Defendant contends that the striking of its pleadings wasunwarranted because plaintiff had not submitted proof of any good faith effort to resolve itsdisagreement with defendant (see 22 NYCRR 202.7 [a] [2]). But in light of defendant'smultiple delays and violations of repeated court orders, its numerous improper objections topractically every demand for disclosure made by plaintiff, its unjustifiable limitation of thesearch of its files, its continued refusal to produce responsive documents and its utter failure toaccount for its behavior, the motion court, under the unique facts of this case, appropriatelyfound it would have [*2]been futile to compel plaintiff to conferonce more with defendant as a condition for moving to strike its pleadings (see Carrasquillov Netsloh Realty Corp., 279 AD2d 334 [2001]). Concur—Mazzarelli, J.P., Nardelli,Catterson, DeGrasse and Roman, JJ. [Prior Case History: 2009 NY Slip Op 30042(U).]