| Rock City Sound, Inc. v Bashian & Farber, LLP |
| 2011 NY Slip Op 02861 [83 AD3d 685] |
| April 5, 2011 |
| Appellate Division, Second Department |
| Rock City Sound, Inc., Respondent, v Bashian & Farber,LLP, et al., Appellants. |
—[*1] Benowich Law, LLP, White Plains, N.Y. (Leonard Benowich of counsel), forrespondent.
In an action, inter alia, to recover damages for legal malpractice and violation of JudiciaryLaw § 487, the defendants appeal, as limited by their brief, from so much of an order ofthe Supreme Court, Dutchess County (Brands, J.), dated December 9, 2009, as granted thatbranch of the plaintiff's renewed motion pursuant to CPLR 3126 which was to strike theiranswer.
Ordered that the order is affirmed insofar as appealed from, with costs.
The genesis of this case is a dispute between the two shareholders of the plaintiff, an audioequipment corporation formed in 1977. The dispute, which generated extensive litigation andseveral appeals in this Court, arose in or around 2004, when Lee Kalish, one of the shareholders,gave notice to the plaintiff and to Shelton Lindsay, the other shareholder, pursuant to theshareholders' agreement, that he wished to sell his shares for the "Established Value" andwithdraw from the corporation. When Kalish and Lindsay were unable to agree on the"Established Value," Kalish sued Lindsay. The defendants in this action represented the plaintiffand Lindsay in Kalish's lawsuit. Ultimately, Lindsay resigned as a shareholder and filed forpersonal bankruptcy. Thereafter, Kalish and the bankruptcy trustee who took over Lindsay'sinterests in the plaintiff voted to commence this action against the defendants, alleging, amongother things, legal malpractice and violation of Judiciary Law § 487. In the order appealedfrom, the Supreme Court, inter alia, granted that branch of the plaintiff's renewed motionpursuant to CPLR 3126 which was to strike the defendants' answer. The defendants appeal, andwe affirm the order insofar as appealed from.
The nature and degree of the penalty to be imposed pursuant to CPLR 3126 rests within thediscretion of the motion court (seeRaville v Elnomany, 76 AD3d 520, 521 [2010]; Negro v St. Charles Hosp. & Rehabilitation Ctr., 44 AD3d 727,728 [2007]; 1523 Real Estate, Inc. vEast Atl. Props., LLC, 41 AD3d 567, 568 [2007]; Ordonez v Guerra, 295 AD2d325, 326 [2002]). However, the "drastic remedy" (Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798,800 [2010]) of striking a pleading pursuant to CPLR 3126 should not be imposed unless thefailure to comply with discovery demands or orders is clearly willful and contumacious (see Lomax v Rochdale Vil., Inc., 76AD3d 999 [2010]; [*2]Moray v City of Yonkers, 76 AD3d 618, 619 [2010]; Cobenas v Ginsburg Dev. Cos., LLC,74 AD3d 1269, 1270 [2010]; XiaoYang Chen v Fischer, 73 AD3d 1167 [2010]). " 'Willful and contumacious conduct maybe inferred from a party's repeated failure to comply with court-ordered discovery, coupled withinadequate explanations for the failures to comply' " (Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798,800 [2010], quoting Savin v BrooklynMar. Park Dev. Corp., 61 AD3d 954, 954-955 [2009]), " 'or a failure to comply withcourt-ordered discovery over an extended period of time' " (Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798,800 [2010], quoting Prappas vPapadatos, 38 AD3d 871, 872 [2007]; see Russell v B&B Indus., 309 AD2d914, 915 [2003]; Penafiel v Puretz, 298 AD2d 446, 447 [2002]).
It is clear from this record that the defendants willfully and contumaciously defied discoveryorders of the Supreme Court by repeatedly failing to submit files requested by the plaintiff(see Russell v B&B Indus., 309 AD2d at 915; Nicoletti v Ozram Transp., 286AD2d 719, 719-720 [2001]; Penafiel v Puretz, 298 AD2d at 447). Accordingly, theSupreme Court providently exercised its discretion in granting that branch of the plaintiff'srenewed motion which was to strike the defendants' answer (see Nicoletti v OzramTransp., 286 AD2d at 719-720; Penafiel v Puretz, 298 AD2d at 447).
The defendants' remaining contentions are without merit. Dillon, J.P., Dickerson, Hall andRoman, JJ., concur.