Appellate Division of the Supreme Court of New York, 2004

Beneficial Mortgage Corp. v. Lawrence

Appellate Division of the Supreme Court of New York · Decided March 1, 2004

5 A.D.3d 339; 772 N.Y.S.2d 713

Cases that cite this one

19 later published cases cite this decision.

Broadway Warehouse Co. v. Schmitt (In re Schmitt) (United States Bankruptcy Court, W.D. New York 2016)
Schwartz v. Suebsanguan (Appellate Division of the Supreme Court of New York 2005)
Matone v. Sycamore Realty Corp. (Appellate Division of the Supreme Court of New York 2011)
Bernal v. Singh (Appellate Division of the Supreme Court of New York 2010)
Mei Yan Zhang v. Santana (Appellate Division of the Supreme Court of New York 2008)
Horne v. Swimquip, Inc. (Appellate Division of the Supreme Court of New York 2007)
Nunez v. City of New York (Appellate Division of the Supreme Court of New York 2007)
Carbajal v. Bobo Robo, Inc. (Appellate Division of the Supreme Court of New York 2007)
State Division of Human Rights v. Berler (Appellate Division of the Supreme Court of New York 2007)
Powell v. Cipollaro (Appellate Division of the Supreme Court of New York 2006)
Devito v. J & J Towing, Inc. (Appellate Division of the Supreme Court of New York 2005)
Frost Line Refrigeration, Inc. v. Frunzi (Appellate Division of the Supreme Court of New York 2005)
Careccia v. Metropolitan Suburban Bus Authority (Appellate Division of the Supreme Court of New York 2005)
Sowerby v. Camarda (Appellate Division of the Supreme Court of New York 2005)
Euro-Central Corp. v. Dalsimer, Inc. (Appellate Division of the Supreme Court of New York 2005)
My Carpet, Inc. v. Bruce Supply Corp. (Appellate Division of the Supreme Court of New York 2004)
Rowell v. Joyce (Appellate Division of the Supreme Court of New York 2004)
Kroll v. Parkway Plaza Joint Venture (Appellate Division of the Supreme Court of New York 2004)
Xina v. City of New York (Appellate Division of the Supreme Court of New York 2004)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

*340In an action to cancel and expunge a mortgage satisfaction erroneously made and recorded, the defendants appeal from a judgment of the Supreme Court, Westchester County (Lefkowitz, J.), entered April 23, 2002, which, inter alia, upon granting the plaintiffs’ motion to strike their answer for failure to comply with discovery requests, in effect, cancelled the mortgage satisfaction.

Ordered that the judgment is affirmed, with costs.

Contrary to the defendants’ contentions, the Supreme Court providently exercised its discretion in striking their answer. 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 Frias v Fortini, 240 AD2d 467 [1997]). In this case, the willful and contumacious character of the defendants’ failure to respond to discovery can be inferred from their repeated refusals to comply with the plaintiffs discovery requests, even after being directed do so by court order, as well as the inadequate explanations offered to excuse their failures to comply (see Conch Assoc. v PMCC Mtge. Corp., 303 AD2d 538 [2003]; Pryzant v City of New York, 300 AD2d 383 [2002]).

Moreover, the defendants are deemed to have admitted all traversable allegations in the complaint as a result of having their answer stricken (see Lavi v Lavi, 256 AD2d 602 [1998]). Accordingly, the Supreme Court properly determined the satisfaction of mortgage invalid and ineffective (see Matter of Barclays Bank of N.Y., 96 AD2d 594 [1983]).

The defendants’ remaining contentions are without merit. Smith, J.P., Goldstein, Luciano and Adams, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.