| Pirro Group, LLC v One Point St., Inc. |
| 2010 NY Slip Op 01776 [71 AD3d 654] |
| March 2, 2010 |
| Appellate Division, Second Department |
| Pirro Group, LLC, Respondent, v One Point Street, Inc.,Appellant, et al., Defendant. |
—[*1] Collier, Halpern, Newberg, Nolletti & Bock, LLP, White Plains, N.Y. (Philip M. Halpernand Scott M. Salant of counsel), for respondent.
In an action to recover damages for unjust enrichment and to recover in quantum meruit forservices rendered, the defendant One Point Street, Inc., appeals, as limited by its brief, from somuch of an order of the Supreme Court, Westchester County (R. Bellantoni, J.), entered March23, 2009, as granted that branch of the plaintiff's motion which was to strike its answer pursuantto CPLR 3126 (3).
Ordered that the order is affirmed insofar as appealed from, with costs.
The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 iswithin the discretion of the motion court (see Novick v DeRosa, 51 AD3d 885 [2008]; Martin v City of New York, 46 AD3d635 [2007]; Bomzer v Parke-Davis,Div. of Warner Lambert Co., 41 AD3d 522 [2007]). The drastic remedy of striking apleading pursuant to CPLR 3126 (3) for failure to comply with court-ordered disclosure shouldbe granted only where the conduct of the resisting party is shown to be willful and contumacious(see Novick v DeRosa, 51 AD3d at 885; Suazo-Alvarez v Nordlaw, LLC, 48 AD3d 670 [2008]; McArthur v New York City Hous.Auth., 48 AD3d 431 [2008]).
Here, the appellant's willful and contumacious conduct can be inferred from its repeatedfailures, over an extended period of time, to comply with the plaintiff's request for documentsand with the court's order and directives to comply with that request, together with theinconsistent and contradictory excuses for those failures to comply (see Byam v City of New York, 68AD3d 798 [2009]; Maiorino v Cityof New York, 39 AD3d 601, 602 [2007]). Accordingly, the Supreme Court providentlyexercised its discretion in granting that branch of the plaintiff's motion which was to strike theappellant's answer pursuant to CPLR 3126 (3). Skelos, J.P., Covello, Eng, Chambers and Sgroi,JJ., concur.