Diamond State Ins. Co. v Utica First Ins. Co.

Diamond State Ins. Co. v Utica First Ins. Co. 2009 NY Slip Op 08703 [67 AD3d 613] November 24, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

Diamond State Insurance Company, as Subrogee of Gentry Apartments, Inc., Respondent,
v
Utica First Insurance Company, Appellant.

—[*1] Farber Brocks & Zane L.L.P., Mineola (Audra S. Zane of counsel), for appellant.

Steven G. Fauth, New York, for respondent.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered January 13, 2009, which, to the extent appealed from as limited by the briefs, granted plaintiff's cross motion to strike the answer for failure to comply with disclosure obligations, unanimously affirmed, with costs.

This is a subrogation action involving a roof fire. Plaintiff sought to obtain other roofing exclusion claim files in defendant's possession. Defendant insurer has exhibited a pattern of repeated noncompliance with orders in this case and by this Court in a prior appeal (see 37 AD3d 160 [2007]), giving rise to an inference that its conduct has been willful and contumacious (see Olmsted v Pizza Hut of Am., Inc., 61 AD3d 1238, 1240-1241 [2009]). Defendant's behavior was particularly reprehensible because defendant not only violated the motion court's conference orders, but also endeavored to undermine an appellate order by limiting its search to only a small percentage of its potentially relevant files. Defendant contends that the striking of its pleadings was unwarranted because plaintiff had not submitted proof of any good faith effort to resolve its disagreement with defendant (see 22 NYCRR 202.7 [a] [2]). But in light of defendant's multiple delays and violations of repeated court orders, its numerous improper objections to practically every demand for disclosure made by plaintiff, its unjustifiable limitation of the search of its files, its continued refusal to produce responsive documents and its utter failure to account for its behavior, the motion court, under the unique facts of this case, appropriately found it would have [*2]been futile to compel plaintiff to confer once more with defendant as a condition for moving to strike its pleadings (see Carrasquillo v Netsloh Realty Corp., 279 AD2d 334 [2001]). Concur—Mazzarelli, J.P., Nardelli, Catterson, DeGrasse and Roman, JJ. [Prior Case History: 2009 NY Slip Op 30042(U).]