Opinion
No. 206 SSM 32.
Decided October 20, 2009.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered August 26, 2008. The Appellate Division affirmed an order of the Supreme Court, New York County (Rolando T. Acosta, J.; op 2006 NY Slip Op 30547[U]), which had dismissed plaintiffs' remaining cause of action and defendant's counterclaims for failure to comply with discovery and effectively denied defendant's request for signed transcripts. The following question was certified by the Appellate Division: "Was the order of this Court, which affirmed the order of the Supreme Court, properly made?"
In an action alleging breach of a no-disparagement clause in a severance agreement, the Appellate Division concluded that Supreme Court providently exercised its discretion to strike the pleadings (CPLR 3126) where the parties offered no excuse for their repeated noncompliance with disclosure orders, and their conduct throughout the course of litigation was dilatory, evasive, obstructive and contumacious; and that the court's finding that the parties' conduct was willful and contumacious was supported by the record.
Arts4All, Ltd. v Hancock, 54 AD3d 286, affirmed.
Trachtenberg Rodes Friedberg LLP, New York City ( David G. Trachtenberg of counsel), for appellant.
Law Offices of Zachary R. Greenhill, P.C., New York City ( Zachary R. Greenhill of counsel), for respondents.
Before: Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES. Taking no part: Chief Judge LIPPMAN.
OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, with costs, and certified question not answered as unnecessary. The courts below did not abuse their discretion in dismissing defendant's counterclaims pursuant to CPLR 3126 (3) ( see Arts4All, Ltd. v Hancock, 12 NY3d 846). Defendant's remaining argument is without merit.