| VanEtten Oil Co., Inc. v Exotic Flora & Fauna, Ltd. |
| 2010 NY Slip Op 08660 [78 AD3d 1438] |
| November 24, 2010 |
| Appellate Division, Third Department |
| VanEtten Oil Company, Inc., Respondent, v Exotic Flora & Fauna, Ltd.,et al., Appellants. |
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Garry, J. Appeals (1) from an order of the Supreme Court (Sackett, J.), entered September 28,2009 in Sullivan County, which, among other things, granted plaintiff's motion to strike defendants'answer, and (2) from the judgment entered thereon.
Plaintiff commenced this action in July 2008 seeking to recover, among other things, the costsassociated with furnishing and installing a new boiler for defendant Exotic Flora & Fauna, Ltd. inNovember 2007. Defendants answered, asserted various affirmative defenses and counterclaimedseeking, among other things, reimbursement for damages allegedly sustained to its premises when theoriginal boiler malfunctioned.
In November 2008, plaintiff served a combined discovery demand and demand for a bill ofparticulars. When no response to either its initial demand or its subsequent 20-day demand wasforthcoming, plaintiff moved to strike defendants' answer. Although plaintiff withdrew its motion uponreceipt of a verified bill of particulars from defendants, Supreme Court, unaware of these events, issuedan order conditionally striking defendants' answer. Deeming defendants' responses to be inadequate,plaintiff requested a compliance conference, as a result of which defendants stipulated to, insofar as isrelevant to this appeal, providing an itemization of the damages claimed together with supportingdocumentation. When defendants failed to comply, plaintiff again moved to, among other things, strikethe answer and obtain a default judgment. [*2]Supreme Court grantedplaintiff's application to that extent and defendants now appeal.
We affirm. Preliminarily, we note that "[a]lthough characterized as a default judgment, relief grantedunder CPLR 3126 (3) is directly appealable because such an order is made on notice, thus enabling thedefaulting party to contest the motion" (Figielv Met Food, 48 AD3d 330 [2008]; see M & C Bros., Inc. v Torum, 75 AD3d 869, 870 [2010]). Asdefendants opposed the underlying motion, their appeal is properly before us.
Turning to the merits, "Supreme Court has discretion to impose sanctions—including strikinga party's pleading—for the willful failure to disclose evidence and, absent a clear abuse of thatdiscretion, the sanctions imposed will not be disturbed on appeal" (Ernie Otto Corp. v Inland Southeast Thompson Monticello, LLC, 53 AD3d924, 926 [2008] [internal quotation marks and citation omitted], lv dismissed 11 NY3d827 [2008]; accord Olmsted v Pizza Hut ofAm., Inc., 61 AD3d 1238, 1241 [2009]; see Doherty v Schuyler Hills, Inc., 55 AD3d 1174, 1175-1176 [2008];Altu v Clark, 20 AD3d 749, 750[2005]). Willfulness, in turn, may be inferred from an overall pattern of noncompliance (see Mazzuca v Warren P. Wielt Trust, 59AD3d 907, 908 [2009]; Colley vRomas, 50 AD3d 1338, 1339 [2008]; Adamski v Schuyler Hosp., Inc., 36 AD3d 1198, 1199 [2007]). Here,despite being given ample opportunity to respond to plaintiff's demands—as evidenced by theprior motion to strike and resulting compliance conference and stipulated order—defendantsnonetheless failed to respond in any meaningful way to plaintiff's requests and offered no cogent excusefor failing to do so. Under these circumstances, we cannot say that Supreme Court abused its discretionin granting plaintiff's motion to strike defendants' answer.
Rose, J.P., Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the order and judgment areaffirmed, with costs.