Opinion
11-04-2015
NEW YORK TIMBER, LLC, respondent, v. SENECA COMPANIES, appellant.
Ken Maguire & Associates PLLC, Garden City, N.Y., for appellant. Bisogno & Meyerson, LLP, Brooklyn, N.Y. (Anthony M. Deliso of counsel), for respondent. JOHN M. LEVENTHAL, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, ROBERT J. MILLER, and BETSY BARROS, JJ.
Ken Maguire & Associates PLLC, Garden City, N.Y., for appellant.
Bisogno & Meyerson, LLP, Brooklyn, N.Y. (Anthony M. Deliso of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, ROBERT J. MILLER, and BETSY BARROS, JJ.
Opinion
In an action to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated October 10, 2014, which granted the plaintiff's motion for leave to extend the time to file a note of issue and, in effect, denied its cross motion pursuant to CPLR 3126 to strike the complaint.
ORDERED that the order is affirmed, with costs.
1 Contrary to the defendant's contention, CPLR 3404 does not apply to this pre-note of issue case (see Goodman v. Lempa, 124 A.D.3d 581, 997 N.Y.S.2d 912; Dokaj v. Ruxton Tower Ltd. Partnership, 55 A.D.3d 661, 865 N.Y.S.2d 653; Suburban Restoration Co., Inc. v. Viglotti, 54 A.D.3d 750, 751, 863 N.Y.S.2d 724). Furthermore, there was no 90–day demand pursuant to CPLR 3216 served upon the plaintiff, inter alia, requiring that the plaintiff serve and file a note of issue within 90 days after receipt of such demand (see CPLR 3216[b][3]; Countrywide Home Loans, Inc. v. Gibson, 111 A.D.3d 875, 976 N.Y.S.2d 142; Arroyo v. Board of Educ. of City of N.Y., 110 A.D.3d 17, 970 N.Y.S.2d 229; Rakha v. Pinnacle Bus Servs., 98 A.D.3d 657, 658, 949 N.Y.S.2d 769). Therefore, under these circumstances, and given the plaintiff's reasonable excuse for the delay in conducting discovery and the lack of prejudice to the defendant, the Supreme Court providently exercised its discretion in granting the plaintiff's motion for leave to extend the time to file a note of issue (see CPLR 2004; Oliver v. Town of Hempstead, 68 A.D.3d 1079, 1080, 891 N.Y.S.2d 456; Conway v. Brooklyn Union Gas Co., 212 A.D.2d 497, 623 N.Y.S.2d 2; Markarian v. Hundert, 180 A.D.2d 780, 781, 580 N.Y.S.2d 428; Carte v. Segall, 134 A.D.2d 397, 398, 520 N.Y.S.2d 944).
234 Moreover, the Supreme Court providently exercised its discretion in denying the defendant's cross motion pursuant to CPLR 3126 to strike the complaint for the plaintiff's alleged failure to comply with court-ordered discovery. The drastic remedy of striking a pleading should not be imposed unless the failure to comply with discovery demands or orders was clearly willful and contumacious (see Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 A.D.3d 201, 210, 959 N.Y.S.2d 74; Zakhidov v. Boulevard Tenants Corp., 96 A.D.3d 737, 739, 945 N.Y.S.2d 756; Commisso v. Orshan, 85 A.D.3d 845, 925 N.Y.S.2d 612). The willful and contumacious character of a party's conduct may be inferred from the party's repeated failure to comply with court-ordered discovery, and the absence of any reasonable excuse for those failures, or a failure to comply with court-ordered discovery over an extended period of time (see Tos v. Jackson Hgts. Care Ctr., LLC, 91 A.D.3d 943, 944, 937 N.Y.S.2d 629; Mangru v. Schering Corp., 90 A.D.3d 621, 933 N.Y.S.2d 897; Matone v. Sycamore Realty Corp., 87 A.D.3d 1113, 1114, 930 N.Y.S.2d 460).
Here, the plaintiff substantially complied with the defendant's notices for discovery, and made a good-faith effort to locate certain items requested by the defendant, even though it was unable to locate them. Under the circumstances of this case, there was no clear showing that the plaintiff's conduct was willful and contumacious (see Palmieri v. Piano Exch., Inc., 124 A.D.3d 611, 612, 1 N.Y.S.3d 315; Delarosa v. Besser Co., 86 A.D.3d 588, 589, 926 N.Y.S.2d 910; Prappas v. Papadatos, 38 A.D.3d 871, 872–873, 833 N.Y.S.2d 156).