Appellate Division of the Supreme Court of New York, 2004

Diel v. Rosenfeld

Appellate Division of the Supreme Court of New York · Decided November 22, 2004

12 A.D.3d 558; 784 N.Y.S.2d 379; 2004 N.Y. App. Div. LEXIS 14254

Cases that cite this one

11 later published cases cite this decision.

Crystal Clear Development, LLC v. Devon Architects of New York, P.C. (Appellate Division of the Supreme Court of New York 2015)
Castillo v. Star Leasing Co. (Appellate Division of the Supreme Court of New York 2011)
Workman v. Town of Southampton (Appellate Division of the Supreme Court of New York 2010)
Quiroz v. Beitia (Appellate Division of the Supreme Court of New York 2009)
Blauman-Spindler v. Blauman (Appellate Division of the Supreme Court of New York 2009)
Melvin v. 24 Aqueduct Lane Condominium (Appellate Division of the Supreme Court of New York 2008)
Newell v. Ford Motor Credit Co. (Appellate Division of the Supreme Court of New York 2007)
Gateway Title & Abstract, Inc. v. Your Home Funding, Inc. (Appellate Division of the Supreme Court of New York 2007)
Accounts Receivable Solutions, Inc. v. Tompkins Trustco, Inc. (Appellate Division of the Supreme Court of New York 2007)
Faulkner v. City of New York (Appellate Division of the Supreme Court of New York 2006)
Cestaro v. Mun Yuen Roger Chin (Appellate Division of the Supreme Court of New York 2005)

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

In an action, inter alia, to recover damages for fraud, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Fagones, J), dated July 16, 2003, which granted the defendant’s motion pursuant to CFLR 3126 (3) to dismiss the complaint.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motion is denied, the complaint is reinstated, and the matter is remitted to the Supreme Court, Dutchess County, for further proceedings consistent herewith.

The defendant was not entitled to the dismissal of the complaint under CPLR 3126 (3) without first moving to compel the deposition she seeks, accompanied by an affirmation that she made a good faith effort to resolve the discovery dispute (see 22 NYCRR 202.7 [a]; Dennis v City of New York, 304 AD2d 611 [2003]; Charter One Bank v Houston, 300 AD2d 429, 430 [2002]; Hegler v Loews Roosevelt Field Cinemas, 280 AD2d 645 [2001]; Barnes v NYNEX, Inc., 274 AD2d 368 [2000]). The defendant’s attorney failed to demonstrate that any attempt was made to confer with his adversary regarding the resolution of this issue.

*559Further, while the nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter generally left to the discretion of the Supreme Court (see Kingsley v Kantor, 265 AD2d 529 [1999]), to invoke the drastic remedy of striking a pleading, a court must determine that the party’s failure to comply with a disclosure order was the result of willful and contumacious conduct (see Mangiapane v Brookhaven Beach Health Related Facility, 305 AD2d 642 [2003]; Patterson v New York City Health & Hosps. Corp., 284 AD2d 516 [2001]; Centerport Ins. Agency v Atlantic Fabricators of Rhode Is., 277 AD2d 414 [2000]; Olmoz v Town of Fishkill, 258 AD2d 447 [1999]). The record does not support the defendant’s contention that the plaintiffs failure to be deposed was the result of willful and contumacious conduct. Accordingly, the Supreme Court improvidently exercised its discretion in granting the defendant’s motion pursuant to CPLR 3126 (3) to dismiss the complaint. Prudenti, EJ., Ritter, H. Miller and Spolzino, JJ., concur.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.