| Kyung Soo Kim v Goldmine Realty, Inc. |
| 2010 NY Slip Op 03878 [73 AD3d 709] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Kyung Soo Kim et al., Appellants, v Goldmine Realty,Inc., et al., Respondents. |
—[*1] Gary Schoer, Syosset, N.Y., for respondents Beverage Depot, Ltd., and Chris Hansen, andBirnbaum & Skedelsky, Whitestone, N.Y. (David Birnbaum of counsel), for respondentsGoldmine Realty, Inc., Susie Kim, and Chris Kim (one brief filed).
In an action to recover a deposit made in contemplation of a commercial lease, the plaintiffsappeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County(Nelson, J.), dated April 28, 2009, as granted that branch of the defendants' motion which was, ineffect, pursuant to CPLR 3126 (3) to dismiss the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The drastic remedy of dismissing a complaint based on the plaintiffs' failure to comply withcourt-ordered disclosure should be granted only where there is a clear showing that the plaintiffs'conduct was willful and contumacious (see Hutchinson v Langer, 71 AD3d 735 [2010]; Brown v Astoria Fed. Sav., 51 AD3d961, 962 [2008]; Robinson v Pediatric Assoc. of Irwin Ave., 307 AD2d 1029, 1030[2003]).
Prior to the subject motion, the plaintiffs failed to respond to any of the defendants'discovery demands and to comply with court orders directing them to do so. Instead, theplaintiffs served and filed a note of issue and certificate of readiness in response to the 90-daydemand pursuant to CPLR 3216 contained in the compliance conference order. The certificate ofreadiness falsely indicated that the bill of particulars had been served. Further, the certificateindicated that discovery proceedings were "not required," when, in fact, the plaintiffs had failedto respond to a long-outstanding set of interrogatories served by certain of the defendants(hereinafter the interrogatories), and failed to respond to the defendants' separate notices fordiscovery and inspection. In addition, no depositions had been held, although certain of thedefendants had noticed depositions of the plaintiffs and the remaining defendants over a yearbefore. The plaintiffs' willful and contumacious conduct can be inferred from their knowing andwrongful submission of a false certificate of readiness and their repeated failures to comply withcourt-ordered disclosure (see Mendez vCity of New York, 7 AD3d 766, 767 [2004]; Alto v Gilman Mgt. Corp., 7 AD3d 650 [2004]; Yona v BethIsrael Med. Ctr., 285 AD2d 460, 461 [2001]).[*2]
After the defendants moved to dismiss the complaint, theplaintiffs served a belated, unverified response to the interrogatories, which was properlyrejected (see CPLR 3133 [b]). The plaintiffs failed to proffer any reasonable excuse fortheir failure to comply with the defendants' discovery requests (see Mendez v City of NewYork, 7 AD3d at 767; Alto v Gilman Mgt. Corp., 7 AD3d at 650; Espinal v Cityof New York, 264 AD2d 806 [1999]). Accordingly, the Supreme Court providentlyexercised its discretion in granting that branch of the defendants' motion which was, in effect,pursuant to CPLR 3126 (3) to dismiss the complaint. Rivera, J.P., Florio, Miller, Chambers andRoman, JJ., concur.