Cach, LLC v Reid

[*1] Cach, LLC v Reid 2014 NY Slip Op 51148(U) Decided on July 7, 2014 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., MARANO and GARGUILO, JJ.
2013-1395 N C

Cach, LLC, Appellant,

against

Zoe A. Reid Also Known as ZOE COLE, Respondent.

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), entered May 20, 2013. The order denied, without prejudice to renewal upon proper papers, plaintiff's motion to strike the answer and for leave to enter judgment in the principal sum of $3,288.53.

ORDERED that the order is modified by providing that the branch of plaintiff's motion seeking to strike defendant's answer is granted; as so modified, the order is affirmed, without costs.

When defendant failed to respond to plaintiff's discovery demands, plaintiff moved, pursuant to CPLR 3126 (3), to strike the answer, based on defendant's willful failure to respond, and for leave to enter judgment in the principal sum of $3,288.53, representing monies owed on a retail installment credit agreement. Defendant failed to oppose the motion. By order entered May 20, 2013, the District Court denied plaintiff's motion without prejudice to renewal upon proper papers. Plaintiff appeals.

A court is authorized to strike the pleadings of a party who willfully fails to disclose information which the court finds ought to have been disclosed (see CPLR 3126 [3]). Striking a pleading is appropriate where a party's conduct in resisting disclosure is shown to be willful and contumacious (see Mendez v City of New York, 7 AD3d 766 [2004]). Here, the fact that defendant's conduct was willful and contumacious can be inferred from her repeated failure to comply with numerous discovery requests. Defendant offered no opposition to the motion and thus no reasonable excuse for her repeated failures to comply with the outstanding discovery. Consequently, the branch of plaintiff's motion seeking to strike defendant's answer should have been granted.

Nevertheless, the court properly noted plaintiff's failure to submit critical evidence demonstrating plaintiff's entitlement to the entry of a default judgment and, thus, its denial, without prejudice to renewal upon proper papers, of the branch of plaintiff's motion seeking leave to enter a judgment was not inappropriate (see PRA III, LLC v Gonzalez, 54 AD3d 917 [2008]; Citibank (S.D.), N.A. v Martin, 11 Misc 3d 219 [Civ Ct, NY County 2005]).

The order is modified accordingly.

Iannacci, J.P., Marano and Garguilo, JJ., concur.

Decision Date: July 07, 2014