Majority
In an action, inter alia, for a judgment declaring a life insurance policy null, void, and rescinded, the defendant appeals, by permission, from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered July 20, 2011, which, upon a prior order of the same court dated June 6, 2011, which, among other things, granted the plaintiffs motion pursuant to CFLR 3126 to strike the defendant’s answer to the extent of directing the defendant to comply with certain discovery demands, and
Ordered that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof granting the plaintiffs application to strike the defendant’s answer, and substituting therefor a provision granting the application to the extent of directing that a negative inference charge be given at trial as to any documents the defendant was legally required to maintain, including payroll and tax records and books and records of account and otherwise denying the application; as so modified, the order is affirmed, without costs or disbursements.
“ ‘The determination whether to strike a pleading for failure to comply with court-ordered disclosure lies within the sound discretion of the trial court’ ” (Giano v Ioannou, 78 AD3d 768 , 770 [2010], quoting Fishbane v Chelsea Hall, LLC, 65 AD3d 1079 , 1081 [2009]; see Kihl v Pfeffer, 94 NY2d 118 , 123 [1999]; Orgel v Stewart Tit. Ins. Co., 91 AD3d 922 [2012]). However, “the ‘drastic remedy’ of striking a pleading pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious” (R ock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685 , 686 [2011] [citation omitted], quoting Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798 , 800 [2010]; see Commisso v Orshan, 85 AD3d 845 [2011]; Morgenstern v Jeffsam Corp., 78 AD3d 913 , 914 [2010]; Giano v Ioannou, 78 AD3d at 770 ; Jenkins v Proto Prop. Servs., LLC, 54 AD3d 726 , 726-727 [2008]; Carabello v Luna, 49 AD3d 679 [2008]). Here, the drastic remedy of striking the answer was inappropriate due to the lack of a clear showing that the defendant failed to comply with court-ordered disclosure and that such failure was willful or contumacious. The defendant provided discovery responses in compliance with court-ordered deadlines and there was no finding by the Supreme Court that the defendant acted in a willful or contumacious manner. Accordingly, and in view of the strong public policy favoring the resolution of cases on the merits (see Negro v St. Charles Hosp. & Rehabilitation Ctr., 44 AD3d 727 , 728 [2007]; 1523 Real Estate, Inc. v East Atl. Props., LLC, 41 AD3d 567 , 568 [2007]), the Supreme Court improvidently exercised its discretion in granting the plaintiff’s application to strike the defendant’s answer (see Pierre v 100 Corp., 97 AD3d 804 [2012]; Hoi Wah Lai v Mack, 89 AD3d 990 [2011]; Di Mascio v Friedman, 83 AD3d 993 , 994 [2011]).
Nonetheless, many of the documents that the defendant was
Cases cited
- Giano v. Ioannou 78 AD3d 768 at 770 p. 657
- Kihl v. Pfeffer 94 NY2d 118 at 123 p. 657
- Friedman, Harfenist, Langer & Kraut v. Rosenthal 79 AD3d 798 at 800 p. 657
- Commisso v. Orshan 85 AD3d 845 p. 657
- Morgenstern v. Jeffsam Corp. 78 AD3d 913 at 914 p. 657
- Jenkins v. Proto Property Services, LLC 54 AD3d 726 at 726-727 p. 657
- Carabello v. Luna 49 AD3d 679 p. 657
- Negro v. St. Charles Hospital & Rehabilitation Center 44 AD3d 727 at 728 p. 657
- 1523 Real Estate, Inc. v. East Atlantic Properties, LLC 41 AD3d 567 at 568 p. 657
- Pierre v. 100 Corp. 97 AD3d 804 p. 657
- Hoi Wah Lai v. Mack 89 AD3d 990 p. 657
- Di Mascio v. Friedman 83 AD3d 993 at 994 p. 657
- Mendez v. La Guacatala, Inc. 95 AD3d 1084 at 1085 p. 658
- Shayovich v. 800 Ocean Parkway Apartment Corp. 77 AD3d 814 at 816 p. 658
- Barone v. City of New York 52 AD3d 630 at 631 p. 658