In re Salkind

7 Citing cases

  1. Blanding v. Return Housing

    277 A.D.2d 92 (N.Y. App. Div. 2000)   Cited 2 times

    Plaintiffs did not conclusively show that the nonappearance for deposition of defendant driver and defendants owners of the vehicle involved in the accident, in accordance with a preliminary conference order, was willful, contumacious or in bad faith, and, accordingly, their answer should not have been unconditionally stricken (see, Christian v. City of New York, 269 A.D.2d 135, 137). Although somewhat belated, defendants' attorneys' documented efforts to locate defendant driver, who is no longer in the employ of the other defendants, did not demonstrate bad faith or contumacy. In addition, where two previous deposition dates had been adjourned, the first at plaintiffs' behest, defendants created no protracted delay, and thus the striking of their answer was too drastic a remedy for their failure to appear at the second adjourned date (see, Hunter Mech. Corp. v. Salkind, 237 A.D.2d 180). THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

  2. Batra v. Office Furniture Service, Inc.

    275 A.D.2d 229 (N.Y. App. Div. 2000)   Cited 12 times

    It was error in this instance to base strict compliance with the stipulated order on contract principles. Had the IAS court objectively reviewed the history of this case, it could not have concluded that Kaspar's slight and arguably justified delay was in any way comparable to the years of dilatory practice in obstructing discovery that took place preceding Kaspar's arrival on the scene (see, Wright v. 145 Tenants Corp., 151 A.D.2d 421; cf., Sandcham Realty Corp. v. Sonnenschine, 246 A.D.2d 477). Absent here is the crucial element of deliberate or contumacious behavior in disregarding a court's directive (Christian v. City of New York, ___ A.D.2d ___, 703 N.Y.S.2d 5; cf., Rosenfeld v. Bower Gardner, 161 A.D.2d 374). Under these circumstances, the striking of Kaspar's pleadings was much too extreme and drastic a penalty (Matter of Hunter Mech. Corp. v. Salkind, 237 A.D.2d 180). On its motion to vacate the default, Kaspar was not required to prove its defense, but merely had to set forth facts sufficient to make a prima facie showing of a meritorious defense (Aerovias de Mexico v. Malerba, Downes Frankel, 265 A.D.2d 214), and it did so. THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

  3. Elizabeth Canal, LLC v. Structure Tone Glob. Servs.

    2024 N.Y. Slip Op. 32736 (N.Y. Sup. Ct. 2024)

    "Striking the answer of a party is an extreme and drastic penalty, warranted where the conduct is clearly deliberate or contumacious" (Hunter Mech. Corp, v. Salkind, 237 A.D.2d 180, 180, 654 N.Y.S.2d 381 [1st Dept 1997] [internal quotations and citations omitted]). There is no basis to strike Cirocco's answer on these papers.

  4. Old Republic Gen. Ins. Corp. v. Scala Contracting Co.

    2021 N.Y. Slip Op. 30514 (N.Y. Sup. Ct. 2021)

    Finally, the court does not find that the conduct of Lloyds and Scottsdale with respect to discovery has been willful, deliberate, or contumacious in a manner necessary to invoke the court's discretion to strike their answers (Hunter Mechanical Corp. v Salkind, 237 AD2d 180, 180 [1st Dept 1997] ["Striking the answer of a party is an 'extreme and drastic penalty,' warranted where the conduct is 'clearly deliberate or contumacious'"]). That portion of Plaintiff's motion is, therefore, denied.

  5. Courtney v. Bd. of Managers of Chadwin House

    2020 N.Y. Slip Op. 33418 (N.Y. Sup. Ct. 2020)

    To the extent that plaintiff seeks an order striking the defendants' answers, the motion is denied. "Striking the answer of a party is an 'extreme and drastic penalty,' warranted where the conduct is 'clearly deliberate or contumacious'" (Hunter Mechanical Corp. v. Salkind, 237 AD2d 180 [1st Dept 2000]). Where the discovery not provided will not "deprive the plaintiff of the means of proving his claim", an adverse inference may be an appropriate remedy rather than striking a pleading (see i.e. Mylonas v. Town of Brookhaven, 305 AD2d 561 [2d Dept 2003]).

  6. Sledziejowska v. Wrobel

    2018 N.Y. Slip Op. 32593 (N.Y. Sup. Ct. 2018)

    The motion is denied. To the extent that plaintiffs let some discovery deadlines go by without producing all that was demanded or ordered, their conduct does not call for any penalty, particularly the drastic remedy of dismissing a pleading (see Matter of Hunter Mech. Corp. v Salkind, 237 AD2d 180, 180 [1st Dept 1997]). Such a penalty is warranted when a party's conduct has been deliberate or contumacious (id.) or egregiously dishonest (see Peters v Peters, 146 AD3d 503, 503 [1st Dept 2017]).

  7. Aliano v. LaMaina

    176 Misc. 2d 975 (N.Y. Sup. Ct. 1998)   Cited 2 times

    The defendant's cross motion for an order granting him leave to reargue is denied. The court found that the defendant's default was willful and warranted striking his answer in its prior order dated September 30, 1997 ( see, Matter of Hunter Mech. Corp. v Salkind, 237 A.D.2d 180 [1st Dept 1997]; Seamon v Apel, 191 A.D.2d 406; Bay Ridge Lbr. Co. v Groenendaal, 175 A.D.2d 94). In light of this finding and the defendant's failure to offer any proof that the defendant's failure to appear for deposition was other than willful, under the circumstances presented in the prior order, dated September 30, 1997, the court directed the plaintiff to file and serve a note of issue, inter alia, to place this matter on the nonjury Trial Calendar of this court for a nonjury trial of damages ( see, CPLR 3215 [a], [b]).