Opinion
2011-09-27
John MATONE, et al., respondents,v.SYCAMORE REALTY CORP., et al., defendants,Joseph Mulle, appellant.
Damian J. Pietanza, Brooklyn, N.Y. (Thomas Torto of counsel), for appellant.Caruso, Caruso & Branda, P.C., Brooklyn, N.Y. (Mark J. Caruso of counsel), for respondents.
In an action, inter alia, to discharge a mortgage, the defendant Joseph Mulle appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated April 23, 2010, as granted the plaintiffs' motion to strike his answer and counterclaims, and directed discharge of the underlying mortgage lien against the subject property.
ORDERED that the order is affirmed insofar as appealed from, with costs.
It is not an improvident exercise of discretion for a court to strike a party's pleading based upon a willful and contumacious failure to comply with discovery demands or orders ( see Rock City Sound, Inc. v. Bashian & Farber, LLP, 83 A.D.3d 685, 920 N.Y.S.2d 394; cf. Lomax v. Rochdale Vil., Inc., 76 A.D.3d 999, 999, 907 N.Y.S.2d 690; Moray v. City of Yonkers, 76 A.D.3d 618, 619, 906 N.Y.S.2d 508; Cobenas v. Ginsburg Dev. Cos. LLC, 74 A.D.3d 1269, 1270, 903 N.Y.S.2d 238). “ ‘Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply’ ” ( Friedman, Harfenist, Langer & Kraut v. Rosenthal, 79 A.D.3d 798, 800, 914 N.Y.S.2d 196, quoting Savin v. Brooklyn Mar. Park Dev. Corp., 61 A.D.3d 954, 954–955, 878 N.Y.S.2d 178), “ ‘or a failure to comply with court-ordered discovery over an extended period of time’ ” ( Friedman, Harfenist, Langer & Kraut v. Rosenthal, 79 A.D.3d at 800, 914 N.Y.S.2d 196, quoting Prappas v. Papadatos, 38 A.D.3d 871, 872, 833 N.Y.S.2d 156; see Russell v. B & B Indus., 309 A.D.2d 914, 915, 766 N.Y.S.2d 374; Penafiel v. Puretz, 298 A.D.2d 446, 447, 748 N.Y.S.2d 767).
The record reveals that the appellant failed over an extended period of time to comply with either the Supreme Court's preliminary conference order or the plaintiffs' notices for discovery, and that he never offered any explanation therefor. Under such circumstances, the Supreme
Court was warranted in granting that branch of the plaintiff's motion which was to strike the appellant's answer. In addition, once the appellant's answer was stricken, the court properly concluded that the plaintiffs were entitled to the relief sought in the complaint, to wit, discharge of the subject mortgage lien ( see Beneficial Mtge. Corp. v. Lawrence, 5 A.D.3d 339, 772 N.Y.S.2d 713; Lavi v. Lavi, 256 A.D.2d 602, 683 N.Y.S.2d 131; see also Saberhagen v. Sweeney, 28 A.D.3d 737, 812 N.Y.S.2d 896).
The appellant's remaining contentions are without merit.
RIVERA, J.P., FLORIO, LEVENTHAL and ROMAN, JJ., concur.