Hollymount Corp. v. Myung J. Park Corp.

Dec 16, 2002
Versions:300 A.D.2d 444
751 N.Y.S.2d 420

—In an action to recover payment due under the terms of a promissory note and personal guaranty, the defendants appeal from stated portions of an order of the Supreme Court, Queens County (Schmidt, J.), dated February 22, 2002, which, inter alia, denied that branch of their motion which was to dismiss the complaint.

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

It is well settled that “where a party disobeys a court order, and by his or her conduct frustrates the disclosure scheme provided by the CPLR, dismissal of a pleading is within the broad discretion of the trial court” (Castrignano v Flynn, 255 AD2d 352, 353; see CPLR 3126 [3]; Ranfort v Peak Tours, 250 AD2d 747; Frias v Fortini, 240 AD2d 467; Kubacka v Town of N. Hempstead, 240 AD2d 374). The drastic remedy of striking a pleading is inappropriate, however, absent a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith (see CPLR 3126 [3]; Barth v City of New York, 294 AD2d 386, 387; Kaplan v Emmett, 265 AD2d 307).

Here, such a showing is absent. Thus the court providently exercised its discretion in denying that branch of the defendants’ motion which was to dismiss the complaint (see Parente v New York Times Co., 277 AD2d 438; Kaplan v Emmett, supra; Garcia v First Spanish Baptist Church of Islip, 259 AD2d 465).

The defendants’ remaining contentions are without merit. Ritter, J.P., Goldstein, Crane and Mastro, JJ., concur.