| Tornheim v Blue & White Food Prods. Corp. |
| 2010 NY Slip Op 03907 [73 AD3d 749] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Uri Tornheim, Appellant, v Blue & White Food ProductsCorp., Respondent. |
—[*1] Blank Rome LLP, New York, N.Y. (Harris N. Cogan, Ryan E. Cronin, and LittlerMendelsohn, P.C. [Joseph E. Field], of counsel), for respondent.
In an action, inter alia, for a judgment declaring that the plaintiff is the beneficial owner of20% of the shares of the stock in the defendant, Blue & White Food Products Corp., and torecover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court,Rockland County (Nelson, J.), entered January 30, 2009, which denied his motion pursuant toCPLR 3126 to strike the answer.
Ordered that the order is affirmed, with costs; and it is further,
Ordered that on the Court's own motion, counsel for the respective parties are directed toshow cause why an order should or should not be made and entered imposing such sanctions andcosts, if any, against the plaintiff and/or his counsel pursuant to 22 NYCRR 130-1.1 (c) as thisCourt may deem appropriate, by filing an original and four copies of their respective affirmationsor affidavits on that issue in the office of the Clerk of this Court and serving one copy of thesame on each other on or before June 4, 2010; and it is further,
Ordered that the Clerk of the Court, or his designee, is directed to serve counsel for therespective parties with a copy of this decision and order by regular mail.
"It is well settled that a trial court is given broad discretion to oversee the discovery process"(Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [1999]). Although actions should beresolved on the merits wherever possible (see Cruzatti v St. Mary's Hosp., 193 AD2d579, 580 [1993]), a court may strike the "pleadings or parts thereof" (CPLR 3126 [3]) as asanction against a party who "refuses to obey an order for disclosure or willfully fails to discloseinformation which the court finds ought to have been disclosed" (CPLR 3126). While the natureand degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is a matter ofdiscretion with the motion court (see Soto v City of Long Beach, 197 AD2d 615, 616[1993]; Spira v Antoine, 191 AD2d 219 [1993]), "striking a pleading is not appropriateabsent a clear showing that the failure to comply with discovery demands was willful orcontumacious" (Anonymous v DuaneReade, Inc., 49 AD3d 479, 480 [2008]).[*2]
Here, in an order entered September 12, 2008, theSupreme Court directed the defendant to produce any documents relating to certain equipmentthat it leased. In response, the defendant produced invoices, letters, check registers, and canceledchecks relating to leased equipment. The plaintiff then moved, as he had done several timespreviously throughout this litigation, to strike the answer, this time on the ground that theproduction of these documents did not comply with the order entered September 12, 2008.
Contrary to the plaintiff's contention, the documents clearly complied with the order enteredSeptember 12, 2008, and the plaintiff, on his motion to strike the answer, failed to articulate whyhe believed that these documents were nonresponsive. Accordingly, the Supreme Court correctlydetermined that the defendant's disclosure was "more than adequate." There was no basis for thestriking of the answer, and the Supreme Court providently exercised its discretion in denying theplaintiff's motion for that relief.
The plaintiff's remaining contentions are raised for the first time on appeal and, accordingly,are not properly before this Court (seegenerally Schehr v McEvoy, 43 AD3d 899, 900 [2007]).
The conduct of the plaintiff and his attorney in pursuing the instant appeal appears to becompletely without merit in law or fact and unsupported by a reasonable argument for anextension, modification, or reversal of existing law, or undertaken primarily to delay or prolongthe resolution of litigation or to harass or maliciously injure another (see 22 NYCRR130-1.1 [c]; Palmieri v Thomas, 29AD3d 658, 659 [2006]; Weinstock v Weinstock, 253 AD2d 873, 874 [1998],cert denied 526 US 1088 [1999]). Accordingly, we direct counsel for the parties tosubmit affirmations or affidavits on the issue of the imposition of sanctions and/or costs againstthe plaintiff or his attorney pursuant to 22 NYCRR 130-1.1 (c). Mastro, J.P., Eng, Belen andAustin, JJ., concur.