| Rawlings v Gillert |
| 2010 NY Slip Op 08085 [78 AD3d 806] |
| November 9, 2010 |
| Appellate Division, Second Department |
| Sandra Rawlings, Respondent, v Joseph C. Gillert,Appellant, et al., Defendants. |
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In an action, inter alia, for the partition and sale of certain real property and for an accountingof certain loan proceeds, the defendant Joseph C. Gillert appeals from an interlocutory judgmentof the Supreme Court, Westchester County (Lefkowitz, J.), dated December 9, 2009, which,upon determining that he willfully failed to comply with an order of the same court dated August10, 2009, conditionally granting the plaintiff's motion, among other things, to strike his pleadingsfor his failure to comply with court-ordered discovery, inter alia, struck the answer withcounterclaims, set the matter down for an inquest to determine the parties' rights and interests inthe subject real property, and directed him to account for the subject loan proceeds.
Ordered that the interlocutory judgment is affirmed, with costs.
Although actions should be resolved on the merits where possible, a court may strike theanswer of a defendant for failure to comply with court-ordered discovery where there is a clearshowing that the noncompliance is willful and contumacious (see CPLR 3126 [3]; Moray v City of Yonkers, 76 AD3d618 [2010]; Palomba v SchindlerEl. Corp., 74 AD3d 1037 [2010]; Rini v Blanck, 74 AD3d 941 [2010]). The determination ofwhether to strike the answer is addressed to the sound discretion of the trial court (see Raville v Elnomany, 76 AD3d520 [2010]; Pirro Group, LLC vOne Point St., Inc., 71 AD3d 654, 655 [2010]; Workman v Town of Southampton, 69 AD3d 619, 620 [2010]).
Contrary to the contention of the defendant Joseph C. Gillert (hereinafter the defendant), theSupreme Court did not improvidently exercise its discretion in striking his answer withcounterclaims pursuant to CPLR 3126. The defendant's repeated, unexcused failures tomeaningfully comply with multiple disclosure requests and court orders and directives over anextended period of time constituted ample evidence that his noncompliance was willful andcontumacious (see Batshever vJafar, 73 AD3d 1108, 1108-1109 [2010]; Pirro Group, LLC v One Point St.,Inc., 71 AD3d at 655; Workman v Town of Southampton, 69 AD3d at 620). In thisregard, the defendant's proffered explanation for his failure to comply with the final disclosuredeadline set by the Supreme Court was not adequately supported by evidence in the record andfailed to [*2]excuse his default in complying with that deadline(see e.g. Rodriguez v United BronxParents, Inc., 70 AD3d 492, 492-493 [2010]; Pugliese v Mondello, 67 AD3d 880, 881 [2009]; Goldstein v CIBC World Mkts. Corp.,30 AD3d 217 [2006]; Reidel vRyder TRS, Inc., 13 AD3d 170, 171 [2004]).
The defendant's remaining contention is without merit. Mastro, J.P., Fisher, Leventhal andBelen, JJ., concur.