Somersault, Inc. v. Holmes Protection, Inc.
Opinion of the Court
—Order; Supreme Court, New York County (Ira Gammerman, J.), entered March 31, 1994, which denied plaintiff’s motion pursuant to CPLR 5015 (a) to vacate a prior order, same court and Justice, entered on or about June 28, 1993, which dismissed plaintiff’s action for failure to comply with a prior conditional order of dismissal for failure to provide discovery, entered on or about May 27, 1993, unanimously reversed, on the law, without costs, the plaintiff’s motion granted and the complaint reinstated without prejudice to the IAS Court’s consideration of defendants’ cross-motions.
Dismissal of the complaint is appropriate where a plaintiff repeatedly and willfully disobeys the court’s successive discovery orders (Meyer v Southampton Art Partners, 199 AD2d 222). Plaintiff’s conduct in not providing the tax documents for fiscal 1990, the year of the loss at issue, could be properly characterized as willful and contumacious, warranting the court’s exercise of discretion in imposing the sanction of dismissal (see, Berman v Szpilzinger, 180 AD2d 612).
On the other hand, the denial of vacatur was an improper
Case-law data current through December 31, 2025. Source: CourtListener bulk data.