| Roug Kang Wang v Chien-Tsang Lin |
| 2012 NY Slip Op 02663 [94 AD3d 850] |
| April 10, 2012 |
| Appellate Division, Second Department |
| Roug Kang Wang et al., Appellants, v Chien-Tsang Lin etal., Respondents. |
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In an action for the specific performance of a contract for the sale of real property, theplaintiffs appeal from an order of the Supreme Court, Queens County (Butler, J.), dated July 2,2009, which granted the motion of the defendant Tsu Y. Wang to strike the complaint in itsentirety pursuant to CPLR 3126, upon the plaintiffs' failure to comply with a discovery order ofthe same court (Dorsa, J.), dated July 14, 2008, a stipulation between the parties dated March 11,2009, and a ruling of the same court (Hart, J.), made on May 5, 2009, respectively.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the motion of the defendant Tsu Y. Wang which were to strike the complaintinsofar as asserted against the defendants Chien-Tsang Lin, Prince Development Company, LLC,and Mao-Nan Construction, Inc., and substituting therefor provisions denying those branches ofthe motion; as so modified, the order is affirmed, without costs or disbursements.
The plaintiffs commenced this action for the specific performance of a contract for the sale ofreal property against the defendants Chien-Tsang Lin, Tsu Y. Wang, Prince DevelopmentCompany, LLC, and Mao-Nan Construction Company, Inc.
The Supreme Court initially directed that the plaintiffs' depositions were to be completed byJune 24, 2006. Two years later, in an order dated July 14, 2008, the Supreme Court directed theparties to complete the depositions by October 2008. The plaintiffs were not deposed by thatdeadline, and, in a stipulation dated March 11, 2009, the parties agreed, inter alia, that theplaintiffs' depositions would take place on April 21, 2009. The plaintiff Stella Wang (hereinafterWang) finally appeared for her deposition on May 5, 2009. However, in response to the questionsposed to her, she repeatedly responded, "I don't know," claiming, among other things, that shecould not remember her husband's name, how many children she had, or what her signaturelooked like. That afternoon, the Supreme Court directed the parties to continue Wang'sdeposition until completion. Nonetheless, Wang did not appear for her deposition the followingday.
Prior to the completion of their depositions, the plaintiffs filed a note of issue, despite theclear and unequivocal order dated July 14, 2008, directing that "[n]o 'new' note of issue may be[*2]filed until an accurate representation is made that alldiscovery is completed."
The defendant Tsu Y. Wang moved to strike the complaint in its entirety pursuant to CPLR3126. In an order dated July 2, 2009, the Supreme Court granted the motion, and determined thatthe complaint would be dismissed insofar as asserted against all four defendants. The plaintiffsappeal, and we modify.
"[A] trial court is given broad discretion to oversee the discovery process" (Castillo vHenry Schein, Inc., 259 AD2d 651, 652 [1999]). Although actions should be resolved on themerits wherever possible (see Cruzatti v St. Mary's Hosp., 193 AD2d 579, 580 [1993]), acourt may strike the "pleadings or parts thereof" (CPLR 3126 [3]) as a sanction against a partywho "refuses to obey an order for disclosure or wilfully fails to disclose information which thecourt finds ought to have been disclosed" (CPLR 3126). While the nature and degree of thesanction to be imposed on a motion pursuant to CPLR 3126 is a matter of discretion with themotion court (see Soto v City of Long Beach, 197 AD2d 615, 616 [1993]; Spira vAntoine, 191 AD2d 219 [1993]), "striking [a pleading] is inappropriate absent a clearshowing that the failure to comply with discovery demands is willful [and] contumacious"(Harris v City of New York, 211 AD2d 663, 664 [1995]).
Here, the plaintiffs' willful and contumacious conduct can be inferred from their failure tocomply with the order, stipulation, and ruling requiring disclosure (see Espinal v City of NewYork, 264 AD2d 806 [1999]), the numerous unresponsive and evasive answers given byWang at her deposition, and the plaintiffs' failure to offer a reasonable excuse for their failure toprovide disclosure (see Northfield Ins.Co. v Model Towing & Recovery, 63 AD3d 808, 808-809 [2009]; Maiorino v City of New York, 39AD3d 601, 601-602 [2007]; Kryzhanovskaya v City of New York, 31 AD3d 717 [2006]). Thus,the Supreme Court providently exercised its discretion in granting that branch of the motion ofthe defendant Tsu Y. Wang which was to strike the complaint insofar as asserted against him.
The Supreme Court erred in granting those branches of the motion which were to strike thecomplaint insofar as asserted against the three remaining defendants. Although these defendantswere similarly affected by the plaintiffs' actions, the record contains no evidence that they eversought orders either compelling disclosure or striking the complaint. Thus, the Supreme Courtshould not have stricken the complaint insofar as asserted against the defendants Chien-TsangLin, Prince Development Company, LLC, and Mao-Nan Construction, Inc. (see Zletz vWetanson, 67 NY2d 711, 713-714 [1986]). Skelos, J.P., Eng, Belen and Cohen, JJ., concur.