| Dutchess Truck Repair, Inc. v Boyce |
| 2014 NY Slip Op 05768 [120 AD3d 543] |
| August 13, 2014 |
| Appellate Division, Second Department |
[*1]
| Dutchess Truck Repair, Inc., et al.,Appellant, v Joe Boyce et al., Respondents, et al.,Defendant. |
Norman A. Kaplan, Great Neck, N.Y. (Barry Silver of counsel), for appellants.
The Sarcone Law Firm, PLLC, White Plains, N.Y. (Pasquale Sommella and John A.Sarcone III of counsel), for respondents.
In an action, inter alia, to recover damages for breach of a commercial lease, theplaintiffs appeal, as limited by their brief, (1) from so much of an order of the SupremeCourt, Dutchess County (Pagones, J), dated December 14, 2011, as denied their motionto strike the answer of the defendants Joe Boyce, Sally Boyce, and Trans StarEnterprises, Inc., pursuant to CPLR 3126, to vacate their default in serving a timely replyto the counterclaim of the defendants Joe Boyce, Sally Boyce, and Trans Star Enterprises,Inc., and to compel those defendants to accept the plaintiffs' reply, and (2) from so muchof an order of the same court dated September 21, 2012, as granted those branches of themotion of the defendants Joe Boyce, Sally Boyce, and Trans Star Enterprises, Inc., whichwere to strike the plaintiffs' note of issue and to dismiss the complaint insofar as assertedagainst them pursuant to CPLR 3216 for failure to prosecute.
Ordered that the orders are affirmed insofar as appealed from, with one bill ofcosts.
Where a party "refuses to obey an order for disclosure or wilfully fails to discloseinformation which the court finds ought to have been disclosed," the court may, interalia, strike that party's pleadings or portions thereof (CPLR 3126 [3]). However, "[t]hestriking of a party's pleading is a drastic remedy only warranted where there has been aclear showing that the failure to comply with discovery demands was willful andcontumacious" (Arpino v F.J.F.& Sons Elec. Co., Inc., 102 AD3d 201, 210 [2012]; see Silberstein v Maimonides Med.Ctr., 109 AD3d 812, 814 [2013]; Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 739[2012]; Romeo v Barrella,82 AD3d 1071, 1075 [2011]; Howe v Jeremiah, 51 AD3d 975 [2008]). Because theplaintiffs failed to demonstrate that the conduct of the defendants Joe Boyce and SallyBoyce was willful and contumacious, the Supreme Court properly denied that branch ofthe plaintiffs' motion which was to strike their answer pursuant to CPLR 3126.
"Upon the application of a party, the court may extend the time to appear or plead, orcompel the acceptance of a pleading untimely served, upon such terms as may be just andupon a showing of reasonable excuse for delay or default" (CPLR 3012 [d]; see EHS Quickstops Corp. v [*2]GRJH, Inc., 112 AD3d 577, 578 [2013]).Similarly, a court may relieve a party from an order on the basis of "excusable default, ifsuch motion is made within one year after service of a copy of the . . . orderwith written notice of its entry upon the moving party" (CPLR 5015 [a] [1]). However,relief from a default is proper only where the party seeking relief demonstrates areasonable excuse for the default and a potentially meritorious defense (see Farhadi v Qureshi, 105AD3d 990, 991 [2013]; Deutsche Bank Natl. Trust Co. v Gutierrez, 102 AD3d 825[2013]; Deutsche Bank Natl.Trust Co. v Pietranico, 102 AD3d 724, 725 [2013]).
Here, even assuming that the plaintiffs' excuse of law office failure was sufficient toexcuse their failure to serve a timely reply to the counterclaim of the defendants JoeBoyce, Sally Boyce, and Trans Star Enterprises, Inc. (hereinafter collectively thedefendants) (see Michaels vSunrise Bldg. & Remodeling, Inc., 65 AD3d 1021, 1023 [2009]; CPLR2005), the Supreme Court properly declined to vacate their default and to compelacceptance of their reply. The record establishes that, after the defendants' rejection ofthe plaintiffs' reply to the counterclaim and the court's finding that they were in default,the plaintiffs waited nearly two years before moving to vacate their default and to compelthe defendants to accept their reply. Because the plaintiffs proffered no reasonableexcuse for their failure to promptly seek relief, the court providently exercised itsdiscretion in denying those branches of the plaintiffs' motion (see Nash v Port Auth. of N.Y.& N.J., 22 NY3d 220, 226 [2013]; Karalis v New Dimensions HR, Inc., 105 AD3d 707, 708[2013]).
"Where a party unreasonably neglects to proceed generally in an action or otherwisedelays in the prosecution thereof against any party who may be liable to a separatejudgment, or unreasonably fails to serve and file a note of issue, the court, on its owninitiative or upon motion, may dismiss the party's pleading on terms" (CPLR 3216 [a]).Before doing so, the court or the party seeking such relief must serve a written demand toresume prosecution and to serve and file a note of issue within 90 days of receipt of suchdemand, and further advise the party upon whom such notice was served that failure todo so may result in dismissal of the action (see CPLR 3216 [b] [3]). Pursuant to22 NYCRR 202.21 (a), an action will not be deemed ready for trial or inquest unless anote of issue is first filed, accompanied by a certificate of readiness stating that there areno outstanding requests for discovery and the case is ready for trial (see 22NYCRR 202.21 [a], [b]; Furrukh v Forest Hills Hosp., 107 AD3d 668, 669[2013]).
On March 26, 2012, the Supreme Court, on its own initiative, and based upon theplaintiffs' repeated failure to file a compliant note of issue as directed, issued a 90-daynotice requiring the plaintiffs to produce all outstanding discovery and file a note ofissue. Although the plaintiffs filed a note of issue on June 9, 2012, the accompanyingcertificate of readiness, which stated that an appeal was pending with respect todiscovery issues, did not comply with 22 NYCRR 202.21 (a) and (b) (see Furrukh vForest Hills Hosp., 107 AD3d at 669; Brown v Astoria Fed. Sav., 51 AD3d 961, 962 [2008];Blackwell v Long Is. Coll. Hosp., 303 AD2d 615, 615-616 [2003]). Theplaintiffs also failed to demonstrate that the complaint should not be dismissed basedupon their failure to prosecute the action by proffering "a justifiable excuse for the delayand a meritorious cause of action" (Blackwell v Long Is. Coll. Hosp., 303 AD2dat 616; see Sharpe v Osorio,21 AD3d 467, 468 [2005]). Accordingly, the court properly granted that branch ofthe defendants' motion which was to strike the note of issue and, upon so doing,providently exercised its discretion granting that branch of the defendants' motion whichwas to dismiss the complaint insofar as asserted against them pursuant to CPLR 3216 forfailure to prosecute (see Blackwell v Long Is. Coll. Hosp., 303 AD2d at 616;Perez v Long Is. Jewish-Hillside Med. Ctr., 173 AD2d 530, 530-531[1991]).
In light of the foregoing, we need not reach the plaintiffs' remaining contentions.Balkin, J.P., Chambers, Cohen and Duffy, JJ., concur.