Samuel v Macy's Northeast, Inc.

[*1] Samuel v Macy's Northeast, Inc. 2010 NY Slip Op 50288(U) [26 Misc 3d 140(A)] Decided on February 25, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 25, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570418/09.

Mirna Samuel and Richard Samuel, Plaintiffs-Appellants,

against

Macy's Northeast, Inc., Defendant-Respondent.

Plaintiffs, as limited by their brief, appeal from (1) an order of the Civil Court of the City of New York, New York County (Arthur F. Engoron, J.), entered March 11, 2008, which denied their motion for summary judgment, and (2) an order (same court, Arlene P. Bluth, J.), entered January 28, 2009, which granted defendant's motion to dismiss the complaint pursuant to CPLR 3126.

Per Curiam.

Orders (Arthur F. Engoron, J.), entered March 11, 2008, and January 28, 2009 (Arlene P. Bluth, J.), affirmed, without costs.

The remedy of striking a complaint pursuant to CPLR 3126 is appropriate where the plaintiffs' failure to provide court-ordered disclosure was willful, contumacious or due to bad faith (see Weissman v 20 East 9th Street Corp., 48 AD3d 242, 243 [2008]). Here, Civil Court providently exercised its discretion in dismissing the complaint in this 16-year-old action because of plaintiffs' long-continued pattern of noncompliance with court orders, which gave rise to an inference of willful and contumacious conduct (Jones v Green, 34 AD3d 260, 261 [2006]; see Figiel v Met Food, 48 AD3d 330 [2008]; see also Couri v Siebert, 48 AD3d 370 [2008]). We sustain the denial of plaintiffs' second motion for summary judgment on the complaint.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: February 25, 2010