| Dank v Sears Holding Mgt. Corp. |
| 2010 NY Slip Op 00093 [69 AD3d 557] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Warren S. Dank, Appellant, v Sears Holding ManagementCorporation et al., Respondents. |
—[*1] Greenberg Traurig, LLP, New York, N.Y. (Loring I. Fenton and William A. Wargo ofcounsel), for respondents.
In an action to recover damages for violation of General Business Law §§ 349and 350 and fraud, the plaintiff appeals, as limited by his brief, from so much of an order of theSupreme Court, Nassau County (Bucaria, J.), dated February 18, 2009, as denied his motionpursuant to CPLR 3126, inter alia, to strike the amended answer, pursuant to 22 NYCRR 130-1.1for an award of an attorney's fee and costs, and pursuant to CPLR 3123 for a determination thatthe matters set forth in the plaintiff's first notice to admit have been admitted by the defendantSears Holding Management Corporation.
Ordered that the order is affirmed insofar as appealed from, with costs.
The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within thesound discretion of the Supreme Court (see Kihl v Pfeffer, 94 NY2d 118, 122-123[1999]). The striking of a pleading may be appropriate where there is a clear showing that thefailure to comply with discovery demands is willful or contumacious (see Howe v Jeremiah, 51 AD3d975 [2008]; Devito v J & J Towing,Inc., 17 AD3d 624 [2005]). The willful or contumacious character of a party's conductcan be inferred from the party's repeated failure to respond to demands and/or to comply withdiscovery orders (see Howe v Jeremiah,51 AD3d 975 [2008]; McArthur v New York City Hous. Auth., 48 AD3d 431 [2008]).Contrary to the plaintiff's contentions, the defendants' conduct in responding to the plaintiff'sinterrogatories, while not always forthcoming, was not willful or contumacious because they didnot repeatedly fail to respond to discovery demands.
Conduct during a litigation is frivolous and subject to sanction and/or the award of costs,including an attorney's fee, when: "(1) it is completely without merit in law and cannot besupported by a reasonable argument for an extension, modification, or reversal of existing law;(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass ormaliciously injure another; or (3) it asserts material factual statements that are false" (22NYCRR 130-1.1 [c]). To avoid sanctions, at the least, the conduct must have a good faith basis(see Kamruddin v Desmond, 293 AD2d 714 [2002]; see also 22 NYCRR130-1.1a [b]; Matter of Wecker vD'Ambrosio, 6 AD3d 452, 453 [2004]; Matter of Laing v Laing, 261 AD2d 622[1999]; Levy v Carol Mgt. Corp., [*2]260 AD2d 27[1999]).
Here, the conduct of the defendants and their counsel in responding to the plaintiff'sinterrogatories did not warrant the imposition of costs, including an attorney's fee.
Moreover, the defendants' cross motion, inter alia, to compel the plaintiff to answer certainquestions he had refused to answer at a deposition was not frivolous under the circumstancespresent here.
The plaintiff's remaining contentions are without merit. Dillon, J.P., Florio, Balkin andLeventhal, JJ., concur.