| JPMorgan Chase Bank, N.A. v New York State Dept. of MotorVehs. |
| 2014 NY Slip Op 05516 [119 AD3d 903] |
| July 30, 2014 |
| Appellate Division, Second Department |
[*1]
| JPMorgan Chase Bank, N.A., Respondent, v New York StateDepartment of Motor Vehicles et al., Defendants, and Daniel J. Moloney, Also Known asDaniel J. Maloney and Another, et al., Appellants. |
Fasulo Shalley & DiMaggio, LLP, New York, N.Y. (Aaron M. Goldsmith ofcounsel), for appellants.
Winston & Winston, P.C., New York, N.Y. (Aleksander Powietrzynski ofcounsel), for respondent.
In an action, inter alia, to recover possession of a motor vehicle, the defendantsDaniel J. Moloney, also known as Daniel J. Maloney, also known as Dan Maloney, NYSStorage Corp., also known as NYS Storage, Inc., and Liffey Van Lines, Inc., appeal froman order of the Supreme Court, Putnam County (Nicolai, J.), dated December 20, 2012,which granted the plaintiff's motion pursuant to CPLR 3126 to strike their answer forfailure to comply with discovery orders and, in effect, for leave to enter a defaultjudgment against them, and to preclude the introduction of certain witnesses anddocumentary evidence at trial.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withcosts, and the plaintiff's motion pursuant to CPLR 3126 to strike the answer of thedefendants Daniel J. Moloney, also known as Daniel J. Maloney, also known as DanMaloney, NYS Storage Corp., also known as NYS Storage, Inc., and Liffey Van Lines,Inc., in effect, for leave to enter a default judgment against them, and to preclude theintroduction of certain witnesses and documentary evidence at trial is denied.
The determination whether to strike a pleading lies within the sound discretion of thetrial court (see CPLR 3126 [3]; Walter B. Melvin, Architects, LLC v 24 Aqueduct LaneCondominium, 51 AD3d 784, 785 [2008]; Cianciolo v Trism SpecializedCarriers, 274 AD2d 369, 370 [2000]). However, the drastic remedy of striking ananswer is not appropriate absent a clear showing that the failure to comply withdiscovery demands was willful or contumacious (see CPLR 3126 [3]; WalterB. Melvin, Architects, LLC v 24 Aqueduct Lane Condominium, 51 AD3d at 785;Harris v City of New York, 211 AD2d 663, 664 [1995]). In this case, theplaintiff's evidence merely demonstrated that the appellants sought on multiple occasionsto adjourn the second deposition of the appellant Daniel J. Moloney. With respect to theplaintiff's demand for certain documents, it failed to submit in support of its motioneither its demands or the appellants' allegedly inadequate response to them. This wasinsufficient to show a pattern of willful and contumacious failure to respond to discoverydemands or comply with disclosure orders, so as to justify the relief granted by theSupreme Court. Accordingly, the Supreme Court improvidently exercised its discretionin granting the plaintiff's motion to strike the answer, and, in effect, for leave to enter adefault judgment against the appellants, and to preclude [*2]the presentation of certain witnesses and documentaryevidence at trial.
The plaintiff's remaining contention is without merit. Dickerson, J.P., Leventhal,Cohen and Hinds-Radix, JJ., concur.