| Friedman, Harfenist, Langer & Kraut v Rosenthal |
| 2010 NY Slip Op 09215 [79 AD3d 798] |
| December 14, 2010 |
| Appellate Division, Second Department |
| Friedman, Harfenist, Langer & Kraut, Respondent, v RichardBruce Rosenthal, Appellant. |
—[*1] Friedman, Harfenist, Kraut & Perlstein LLP, Lake Success, N.Y. (Steven J. Harfenist and HeatherL. Smar of counsel), for respondent.
In an action, inter alia, to recover unpaid legal fees, the defendant appeals (1), as limited by hisbrief, from so much of an order of the Supreme Court, Nassau County (Galasso, J.), entered August13, 2009, as granted that branch of the plaintiff's motion pursuant to CPLR 3126 (3) which was tostrike his answer, in effect, directed entry of judgment in favor of the plaintiff in the sum of $37,939.64,with interest, and severed and dismissed his counterclaim, (2) from an order of the same court datedOctober 14, 2009, which denied his motion for leave to renew and reargue his opposition to theplaintiff's motion, and (3) from a judgment of the same court entered December 24, 2009, which, uponthe orders, is in favor of the plaintiff and against him in the total sum of $48, 534.67.
Ordered that the appeal from so much of the order dated October 14, 2009, as denied that branchof the plaintiff's motion which was for leave to reargue is dismissed, without costs or disbursements, asno appeal lies from an order denying reargument; and it is further,
Ordered that the appeals from so much of the order dated October 14, 2009, as denied thatbranch of the defendant's motion which was for leave to renew, and the appeal from the order enteredAugust 13, 2009, are dismissed, without costs or disbursements; and it is further,
Ordered that the judgment is reversed, on the facts, and in the exercise of discretion, without costsor disbursements, that branch of the defendant's motion which was for leave to renew is granted, and,upon renewal, so much of the order entered August 13, 2009, as granted that branch of the plaintiff'smotion pursuant to CPLR 3126 (3) which was to strike the answer, in effect, directed entry ofjudgment in favor of the plaintiff in the sum of $37,939.64, with interest, and severed and dismissed hiscounterclaim is vacated, and that branch of the plaintiff's motion which was pursuant to CPLR 3126 (3)to strike the answer is granted only to the extent of imposing a monetary sanction upon the defendant inthe sum of $5,000, payable to the plaintiff, and [*2]that branch of themotion is otherwise denied, and the order dated October 14, 2009, is modified accordingly; and it isfurther,
Ordered that in the event that the defendant does not pay the sum of $5,000 to the plaintiff on orbefore 30 days after the service of a copy of this decision and order by the plaintiff upon the defendant,the judgment is affirmed, with costs.
The defendant's appeals from so much of the order dated October 14, 2009, as denied that branchof his motion which was for leave to renew, and from the order entered August 13, 2009, must bedismissed because the right of direct appeal therefrom terminated with the entry of the judgment in theaction (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on those appeals arebrought up for review and have been considered on the appeal from the judgment (see CPLR5501 [a] [1]).
The nature and degree of the penalty to be imposed pursuant to CPLR 3126 rests within thediscretion of the Supreme Court (see Ravillev Elnomany, 76 AD3d 520 [2010]; Negro v St. Charles Hosp. & Rehabilitation Ctr., 44 AD3d 727, 728[2007]; 1523 Real Estate, Inc. v East Atl.Props., LLC, 41 AD3d 567, 568 [2007]). "[W]hen a party fails to comply with a court orderand frustrates the disclosure scheme set forth in the CPLR, it is well within the Trial Judge's discretion[to dismiss a pleading]" (Kihl v Pfeffer, 94 NY2d 118, 122 [1999]). Strong public policy,however, favors the resolution of cases on the merits (see Negro v St. Charles Hosp. &Rehabilitation Ctr., 44 AD3d at 728; 1523 Real Estate, Inc. v East Atl. Props., LLC, 41AD3d at 568; A.F.C. Enters., Inc. v NewYork City School Constr. Auth., 33 AD3d 737 [2006]). Accordingly, the "drastic remedy"(Lomax v Rochdale Vil., Inc., 76 AD3d999 [2010]; see Moray v City ofYonkers, 76 AD3d 618 [2010]) of the striking of a pleading pursuant to CPLR 3126 shouldnot be imposed unless the failure to comply with discovery demands or orders is clearly willful andcontumacious (see Lomax v Rochdale Vil. Inc., 76 AD3d at 999; Cobenas v Ginsburg Dev. Cos., LLC, 74AD3d 1269 [2010]; Xiao Yang Chen vFischer, 73 AD3d 1167 [2010]; Voutsinas v Voutsinas, 43 AD3d 1156, 1157 [2007]). "Willful andcontumacious conduct may be inferred from a party's repeated failure to comply with court-ordereddiscovery, coupled with inadequate explanations for the failures to comply" (Savin v Brooklyn Mar. Park Dev. Corp., 61AD3d 954, 954-955 [2009] [internal quotation marks omitted]), "or a failure to comply withcourt-ordered discovery over an extended period of time" (Prappas v Papadatos, 38 AD3d 871, 872 [2007]; see Russell vB&B Indus., 309 AD2d 914, 915 [2003]).
Pursuant to CPLR 2221 (e) (2) and (3), a motion for leave to renew must be "based upon newfacts not offered on the prior motion that would change the prior determination or shall demonstrate thatthere has been a change in the law that would change the prior determination," and the motion papersmust contain a "reasonable justification for the failure to present such facts on the prior motion" (see Kuzmin v Nevsky, 74 AD3d 896[2010]; Vaco v Arellano, 74 AD3d791 [2010]).
Here, inasmuch as the defendant offered a reasonable justification for failing to submit certain factsin opposition to the plaintiff's motion, and because those additional facts would have changed the priordetermination, the Supreme Court improvidently exercised its discretion by denying that branch of thedefendant's motion which was for leave to renew. Moreover, upon renewal, the defendantdemonstrated that his delay in providing court-ordered discovery and his inadequate discoveryresponses were not clearly willful and contumacious. Nonetheless, the defendant's conduct duringdiscovery cannot be countenanced, and, under the circumstances, a monetary sanction in the sum of$5,000 is warranted to compensate the plaintiff for the time expended and costs incurred in connectionwith the defendant's failure to comply with court-ordered discovery (see Messer v Keyspan Energy Delivery,Inc., 56 AD3d 738, 738-739 [2008]; Dean v Usine Campagna, 44 AD3d 603, 605 [2007]; O'Neill v Ho, 28 AD3d 626, 627[2006]; Jacobs v Macy's E., Inc., 17AD3d 318, 320 [2005]).
The parties' remaining contentions either are without merit or need not be reached in light of theforegoing. Fisher, J.P., Santucci, Eng and Sgroi, JJ., concur.