| Holand v Cascino |
| 2014 NY Slip Op 07474 [122 AD3d 575] |
| November 5, 2014 |
| Appellate Division, Second Department |
[*1]
| David Holand et al., Appellants, v SalvatoreCascino, Respondent. |
Hamburger, Maxson, Yaffe, Knauer & McNally, LLP, Melville, N.Y. (RichardHamburger and Inna N. Cordiale of counsel), for appellants.
Robinson Brog Leinward Greene Genovese & Gluck, P.C., NewYork, N.Y. (Nicholas Caputo and Jonathan W. Rich of counsel), for respondent.
In an action, inter alia, for an accounting and to recover damages for fraud, theplaintiffs appeal from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.),dated February 10, 2014, which granted that branch of the defendant's motion which waspursuant to CPLR 3126 to dismiss the complaint and to strike the reply to counterclaimsfor failure to comply with discovery demands.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withcosts, and that branch of the defendant's motion which was pursuant to CPLR 3126 todismiss the complaint and to strike the reply to counterclaims for failure to comply withdiscovery demands is denied.
The determination whether to strike a pleading lies within the sound discretion of thetrial court (see CPLR 3126 [3]; JPMorgan Chase Bank, N.A. v New York State Dept. of MotorVehs., 119 AD3d 903, 903-904 [2014]; Walter B. Melvin, Architects, LLC v 24 Aqueduct LaneCondominium, 51 AD3d 784, 785 [2008]). However, the drastic remedy ofstriking a pleading is not appropriate absent a clear showing that the failure to complywith discovery demands was willful or contumacious (see CPLR 3126 [3];JPMorgan Chase Bank, N.A. v New York State Dept. of Motor Vehs., 119 AD3dat 903; Walter B. 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, the plaintiffs served a response to the defendant's notice for discoveryand inspection, and answers to interrogatories, as they were directed to do by court order.Thereafter, they produced further documents, as set forth in a stipulation. While thedefendant was clearly dissatisfied with the responses to his demands, there was noshowing of a pattern of willful failure to respond to discovery demands or comply withdisclosure orders, so as to justify dismissing the complaint and striking the reply tocounterclaims (see Matter ofBlauman-Spindler v Blauman, 68 AD3d 1105, 1107 [2009]; Walter B.Melvin, Architects, LLC v 24 Aqueduct Lane Condominium, 51 AD3d at 785).
Accordingly, the Supreme Court improvidently exercised its discretion in granting[*2]that branch of the defendant's motion which waspursuant to CPLR 3126 to dismiss the complaint and to strike the reply to counterclaims.Skelos, J.P., Dickerson, Chambers and Sgroi, JJ., concur.