| B.E.N. Trading Corp. v Shirley Import, Inc. |
| 2009 NY Slip Op 09535 [68 AD3d 629] |
| December 22, 2009 |
| Appellate Division, First Department |
| B.E.N. Trading Corp., Plaintiff, v Shirley Import, Inc., etal., Defendants/Third-Party Plaintiffs-Appellants. Binyamin Abadi et al., Third-PartyDefendants-Respondents. |
—[*1] Jonathan A. Stein, Cedarhurst, for respondents.
Judgment, Supreme Court, New York County (Richard B. Lowe, III, J.), entered July 23,2008, awarding plaintiff the principal sum of $250,000 against defendants, dismissing thethird-party action and awarding third-party defendants nominal costs and disbursements againstdefendants/third-party plaintiffs, unanimously affirmed, with costs. Appeal from order, samecourt and Justice, entered July 17, 2008, which granted plaintiff's motion to strike defendants'answer, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Defendants' failure to offer a reasonable excuse for their noncompliance with discoverydemands, court orders and the court's rules gives rise to an inference of willful and contumaciousconduct (Siegman v Rosen, 270 AD2d 14, 15 [2000]). The striking of their answer andthird-party complaint was a proper exercise of judicial discretion in light of such conduct (CPLR3126; see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]). Concur—Sweeny, J.P.,Catterson, Renwick, Freedman and Abdus-Salaam, JJ. [Prior Case History: 2008 NY SlipOp 32006(U).]