| Matone v Sycamore Realty Corp. |
| 2011 NY Slip Op 06825 [87 AD3d 1113] |
| September 27, 2011 |
| Appellate Division, Second Department |
| John Matone et al., Respondents, v Sycamore Realty Corp.et al., Defendants, and Joseph Mulle, Appellant. |
—[*1] Caruso, Caruso & Branda, P.C., Brooklyn, N.Y. (Mark J. Caruso of counsel), forrespondents.
In an action, inter alia, to discharge a mortgage, the defendant Joseph Mulle appeals, aslimited by his brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.),dated April 23, 2010, as granted the plaintiffs' motion to strike his answer and counterclaims, anddirected discharge of the underlying mortgage lien against the subject property.
Ordered that the order is affirmed insofar as appealed from, with costs.
It is not an improvident exercise of discretion for a court to strike a party's pleading basedupon a willful and contumacious failure to comply with discovery demands or orders (see Rock City Sound, Inc. v Bashian &Farber, LLP, 83 AD3d 685 [2011]; cf. Lomax v Rochdale Vil., Inc., 76 AD3d 999 [2010]; Moray v City of Yonkers, 76 AD3d618, 619 [2010]; Cobenas vGinsburg Dev. Cos., LLC, 74 AD3d 1269, 1270 [2010]). " 'Willful and contumaciousconduct may be inferred from a party's repeated failure to comply with court-ordered discovery,coupled with inadequate explanations for the failures to comply' " (Friedman, Harfenist, Langer & Kraut vRosenthal, 79 AD3d 798, 800 [2010], quoting Savin v Brooklyn Mar. Park Dev. Corp., 61 AD3d 954, 954-955[2009]), " 'or a failure to comply with court-ordered discovery over an extended period of time' "(Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d at 800, quoting Prappas v Papadatos, 38 AD3d871, 872 [2007]; see Russell v B&B Indus., 309 AD2d 914, 915 [2003]; Penafielv Puretz, 298 AD2d 446, 447 [2002]).
The record reveals that the appellant failed over an extended period of time to comply witheither the Supreme Court's preliminary conference order or the plaintiffs' notices for discovery,and that he never offered any explanation therefor. Under such circumstances, the Supreme Courtwas warranted in granting that branch of the plaintiff's motion which was to strike the appellant'sanswer. In addition, once the appellant's answer was stricken, the court properly concluded thatthe plaintiffs were entitled to the relief sought in the complaint, to wit, discharge of the subjectmortgage lien (see Beneficial Mtge.Corp. v Lawrence, 5 AD3d 339 [2004]; Lavi v Lavi, 256 AD2d 602 [1998]; see also Saberhagen v Sweeney, 28AD3d 737 [2006]).
The appellant's remaining contentions are without merit. Rivera, J.P., Florio, Leventhal andRoman, JJ., concur.