Ideal Abstract & Settlement, Inc. v Dahan

[*1] Ideal Abstract & Settlement, Inc. v Dahan 2018 NY Slip Op 51828(U) Decided on December 7, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., MICHAEL L. PESCE, BERNICE D. SIEGAL, JJ
2017-1681 Q C

Ideal Abstract & Settlement, Inc., Respondent, against

against

Sharon Dahan and WWW Homes, LLC, Appellants, and Ephraim Frenkel, Defendant. WWW Homes, LLC, Third-Party Plaintiff-Appellant, Diego A. Estrada, Esq., Third-Party Defendant-Respondent.

Joseph A. Altman, P.C. (Joseph A. Altman of counsel), for appellants and third-party plaintiff-appellant. Luis F. Echeverria, Esq., for respondent and third-party defendant-respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered June 30, 2017. The order, insofar as appealed from, denied the branch of a motion by defendant Sharon Dahan and defendant third-party plaintiff WWW Homes, LLC seeking to strike plaintiff's complaint and the branch thereof that was made by WWW Homes, LLC seeking to strike the third-party defendant's answer.

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

Plaintiff commenced this action for, among other things, breach of contract, alleging that defendant Sharon Dahan, a member of defendant WWW Homes, LLC (Homes), and defendant Ephraim Frenkel, an attorney, had retained plaintiff's services and failed to pay therefor after Homes's check had been dishonored and returned for insufficient funds. In their answer, Homes and Dahan denied the allegations and asserted affirmative defenses, a cross-claim against Frenkel and a counterclaim, alleging that plaintiff had improperly filed a UCC-1 lien against Homes. Thereafter, Homes filed a third-party complaint against Diego A. Estrada, plaintiff's owner, seeking an order demanding that he "file the necessary UCC-3(s) to clear title." After Estrada filed his answer, Dahan and Homes served discovery demands. Due to plaintiff's and Estrada's failure to meet discovery deadlines, Dahan and Homes moved to, among other things, strike plaintiff's complaint. Homes also sought to strike the third-party defendant's answer. By order entered June 30, 2017, the Civil Court, insofar as is relevant to this appeal, denied those branches [*2]of the motion seeking to strike plaintiff's complaint and Estrada's answer.

The trial court has broad discretion to oversee the discovery process, and the determination whether to strike a pleading for failure to comply with court-ordered disclosure lies within the sound discretion of the trial court (see Orgel v Stewart Tit. Ins. Co., 91 AD3d 922 [2012]; Fishbane v Chelsea Hall, LLC, 65 AD3d 1079 [2009]; Maiorino v City of New York, 39 AD3d 601 [2007]). As public policy strongly favors the resolution of actions on the merits whenever possible, the striking of a party's pleading is a drastic remedy which is warranted only where there has been a clear showing that the failure to comply with discovery is willful and contumacious (see Singer v Riskin, 137 AD3d 999 [2016]; Stone v Zinoukhova, 119 AD3d 928 [2014]). Willful and contumacious conduct can be inferred from a party's repeated failure to respond to demands or to comply with discovery orders without a reasonable excuse (see Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201 [2012]).

Here, the trial court did not improvidently exercise its discretion in determining that the extreme sanction of striking plaintiff's complaint and the answer of the third-party defendant was not warranted, as the circumstances did not support an inference of willful and contumacious conduct (see Singer v Riskin, 137 AD3d 999).

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

WESTON, J.P., PESCE and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 07, 2018