| Household Fin. Realty Corp. of N.Y. v Robinson |
| 2009 NY Slip Op 09812 [68 AD3d 1724] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| Household Finance Realty Corporation of New York,Appellant-Respondent, v David W. Robinson, Individually and as Administrator of the Estate ofSandra F. Robinson, Deceased, Respondent-Appellant. |
—[*1] Chamberlain D'Amanda Oppenheimer & Greenfield LLP, Rochester (K. Wade Eaton ofcounsel), for defendant-respondent-appellant.
Appeal and cross appeal from a judgment of the Supreme Court, Monroe County (EvelynFrazee, J.), entered September 9, 2008. The judgment granted plaintiff's motion to dismiss thecounterclaims and granted defendant's motion to dismiss the complaint.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: We affirm the judgment insofar as it granted plaintiff's motion to dismiss thecounterclaims for reasons stated in the decision at Supreme Court dated July 14, 2008. We alsoaffirm the judgment insofar as it granted defendant's motion to dismiss the complaint as asanction pursuant to CPLR 3126. Defendant met his initial burden by establishing that plaintiffengaged in willful, contumacious or bad faith conduct by failing to comply with a court orderconcerning outstanding discovery demands, thereby shifting the burden to plaintiff to offer areasonable excuse for its noncompliance, and plaintiff failed to meet that burden (see Hill v Oberoi, 13 AD3d 1095[2004]). Present—Hurlbutt, J.P., Peradotto, Carni, Pine and Gorski, JJ.