Horne v. Swimquip, Inc.
Opinion of the Court
Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.
The Supreme Court providently exercised its discretion in denying the plaintiffs motion, inter alia, to vacate the judgment, since she failed to proffer a reasonable excuse for her default in opposing the motion of the defendants Weil-McLain Company, Inc., Wylain, Inc., and Marley-Wylain Company, also known as Marley Company (sued herein as Swimquip, Inc., Swimquip Manfacturing Corporation, Swimquip Mexico, and Swim EQ Products) to dismiss the complaint insofar as asserted against them for the plaintiffs failure to comply with court-ordered disclosure (see CPLR 5015 [a] [1]; Rodriguez v Ng, 23 AD3d 450 [2005]; Cunningham v Diers, 14 AD3d 528 [2005]; Tutt v City of Yonkers, 11 AD3d 532 [2004]).
Furthermore, the Supreme Court providently exercised its discretion in granting the separate cross motions of the defendant Sta-Rite Industries, Inc., and the defendants Trataros Construction, Inc., and Basil-Trataros, a joint venture, in effect, pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them for her failure to timely comply with court-ordered disclosure. 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 and contumacious (see Beneficial
Motion by the respondents Weil-McLain Company, Inc., Wylain, Inc., and Marley-Wylain Company, also known as Marley Company (sued herein also as Swim quip, Inc., Swim quip Manufacturing Corporation, Swimquip Mexico, and Swim EQ Products), inter alia, to dismiss an appeal from an order of the Supreme Court, Kings County, dated November 16, 2005, on the ground that it is barred by the doctrine of Bray v Cox (38 NY2d 350 [1976]). By decision and order on motion of this Court dated October 2, 2006 that branch of the motion was referred to the Justices hearing the appeal for determination upon the argument or submission of the appeal.
Upon the papers filed in support of the motion and the papers filed in opposition or relation thereto, and upon the submission of the appeal, it is
Ordered that the branch of the motion which is to dismiss the appeal on the ground that it is barred by the doctrine of Bray v Cox (38 NY2d 350 [1976]) is denied. Ritter, J.P, Goldstein, Florio and Covello, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.