Town of Babylon v Grasso

[*1] Town of Babylon v Grasso 2015 NY Slip Op 51892(U) Decided on December 15, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., GARGUILO and CONNOLLY, JJ.
2014-1630 S C

Town of Babylon, Respondent,

against

Thomas Grasso, Appellant.

Appeal from an order of the District Court of Suffolk County, Second District (Carl J. Copertino, J.), entered April 16, 2014. The order, insofar as appealed from, denied the branch of defendant's motion seeking to strike the complaint and failed to impose sanctions upon plaintiff.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action to impose civil penalties for defendant's alleged violation of Code of the Town of Babylon § 213-17, defendant moved to, among other things, strike the complaint pursuant to CPLR 3126 or, in the alternative, for leave to renew his prior motion to compel discovery. The District Court determined that striking the complaint was inappropriate in the absence of a clear showing that the failure to comply with discovery demands was willful and contumacious, granted leave to renew defendant's prior motion to compel discovery, and, upon renewal, directed plaintiff to determine whether certain alleged computer records relating to plaintiff's zoning inspector's visits to defendant's premises exist, and if so, to provide defendant with a copy of such records, or notify defendant in writing that no such record exists, within 20 days of the mailing of the court's order to defendant. Defendant appeals from so much of the order as denied the branch of the motion seeking to strike the complaint and failed to grant defendant's application for sanctions, which application was first made in defendant's reply papers.

The drastic remedy of striking the complaint is inappropriate absent a clear showing that the failure to comply with discovery demands was willful and contumacious (see CPLR 3126; Poveromo v Kelley-Amerit Fleet Services, Inc., 127 AD3d 1048 [2015]). Here, defendant failed to make such a showing. Consequently, the District Court properly denied the branch of defendant's motion seeking to strike the complaint.

Defendant's request for the imposition of sanctions was raised for the first time in his reply papers and, thus, should not be considered (see Valila v Town of Hempstead, 107 AD3d 813 [2013]; cf. Rules of Chief Admin of Cts [22 NYCRR] § 130-1.1 [d]). In any event, were we to consider the issue, we would find that the District Court properly denied defendant's request.

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decision Date: December 15, 2015