HSBC Bank of Nev., N.A. v Okocha
Annotate this CaseDecided on March 10, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2009-376 Q C.
HSBC Bank of Nevada, N.A., Respondent,
against
Emmanuel Osita Okocha a/k/a Osita E. Okocha, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J.
Purificacion, J.), entered December 22, 2008. The order, insofar as appealed from, denied the
branches of defendant's motion seeking to dismiss the complaint pursuant to CPLR 3126, to
strike plaintiff's answer to the counterclaims, and to impose sanctions.
ORDERED that the order, insofar as appealed from, is affirmed without costs.
In this action for breach of a credit card agreement, defendant moved pursuant to CPLR 3126 to dismiss the complaint and to strike plaintiff's answer to the counterclaims due to plaintiff's failure to comply with discovery demands. By order dated May 8, 2008, the Civil Court (Joseph Esposito, J.) granted defendant's motion only to the extent of directing plaintiff to provide complete and proper responses to all of defendant's discovery demands within 30 days of service upon plaintiff of the order with notice of entry. The order further provided that, in the event plaintiff failed to provide said responses to defendant's discovery demands, plaintiff would be precluded from offering any testimony or evidence at trial with regard to those discovery items to which it did not respond. Thereafter, defendant moved to, among other things, dismiss the complaint and strike plaintiff's answer to the counterclaims on the ground that plaintiff had failed to comply with his discovery demands. Defendant's moving papers did not specify the discovery demands to which plaintiff allegedly failed to respond. In opposition to defendant's motion, plaintiff's attorney alleged that plaintiff had fully complied with defendant's discovery demands with "comprehensive documentation." In reply, defendant alleged that plaintiff had [*2]failed to provide any contract or agreement bearing defendant's signature and plaintiff had failed to respond to his request to inspect and photocopy documents. The Civil Court denied the motion and restored the case to the trial calendar. The court found that plaintiff had complied with the order dated May 8, 2008 and that defendant had failed to establish that there was any discovery which remained due.
On appeal, defendant contends, among other things, that the complaint should have been dismissed and plaintiff's answer to the counterclaims stricken due to plaintiff's willful and contumacious conduct in failing to respond to his discovery demands.
Actions should be resolved on their merits, whenever possible, and the drastic remedy of striking a pleading is inappropriate absent a clear showing that the failure to comply with discovery demands was willful, contumacious and in bad faith (see Conciatori v Port Auth. of NY & N.J., 46 AD3d 501, 504 [2007]). Defendant's moving papers failed to specify the discovery demands to which plaintiff had failed to respond. The argument raised by defendant on appeal regarding plaintiff's failure to provide a signed contract was raised for the first time in defendant's reply papers in the Civil Court and is not properly before this court on appeal (see Johnston v Continental Broker-Dealer Corp., 287 AD2d 546 [2001]). Consequently, defendant did not meet his burden of establishing that plaintiff had failed to respond to his discovery demands (see Conciatori, 46 AD3d at 504), and, thus, there is no basis to disturb the Civil Court's determination that plaintiff had complied with the May 8, 2008 order directing plaintiff to respond to defendant's discovery demands.
We find that defendant's remaining contentions are either without merit or raised on appeal for the first time and not preserved for our review (see Shinn v Catanzaro, 1 AD3d 195, 198 [2003]).
Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 10, 2010
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