Frost Line Refrigeration, Inc. v. Frunzi

May 23, 2005
Versions:

In an action, inter alia, for injunctive relief based upon a restrictive covenant in an employment contract, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), entered March 11, 2004, as granted that branch of the defendants’ motion which was to strike the complaint pursuant to CPLR 3126.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the plaintiffs’ contentions, the Supreme Court providently exercised its discretion in striking their complaint. Although striking a pleading pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party‘s conduct is shown to be willful, contumacious, or in bad faith (see Beneficial Mtge. Corp. v Lawrence, 5 AD3d 339 [2004]). Here, the willful and contumacious character of the plaintiffs’ failure to respond to discovery could be inferred from their refusal to comply with the defendants’ discovery request for over three years after the date set forth in a preliminary conference order, as well as the inadequate explanation offered to excuse their failure to comply (see Kihl v Pfeffer, 94 NY2d 118 [1999]; Ali v Kring, 272 AD2d 422 [2000]; Brady v County of Nassau, 234 AD2d 408 [1996]). Schmidt, J.P., Santucci, Rivera and Spolzino, JJ., concur.