Appellate Division of the Supreme Court of New York, 2007

Martin v. City of New York

Appellate Division of the Supreme Court of New York · Decided December 11, 2007

46 A.D.3d 635; 847 N.Y.S.2d 621

Cases that cite this one

10 later published cases cite this decision.

Novick v. DeRosa (Appellate Division of the Supreme Court of New York 2008)
Rizzuti v. Laucella (Appellate Division of the Supreme Court of New York 2008)
Parker Waichman, LLP v. Laraia (Appellate Division of the Supreme Court of New York 2015)
Byam v. City of New York (Appellate Division of the Supreme Court of New York 2009)
Ewa v. City of New York (Appellate Division of the Supreme Court of New York 2020)
MacDonald v. Leif (Appellate Division of the Supreme Court of New York 2011)
Quinones v. Long Island Jewish Medical Center (Appellate Division of the Supreme Court of New York 2011)
Pirro Group, LLC v. One Point Street, Inc. (Appellate Division of the Supreme Court of New York 2010)
Savin v. Brooklyn Marine Park Development Corp. (Appellate Division of the Supreme Court of New York 2009)
Gradaille v. City of New York (Appellate Division of the Supreme Court of New York 2008)

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 to recover damages for personal injuries, etc., the defendants City of New York and the Board of Education of the City of New York appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated September 22, 2006, as granted that branch of the plaintiffs’ motion which was pursuant to CPLR 3126 (3) to strike their answer.

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

The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is a matter of discretion with the motion court (see Bomzer v Parke-Davis, Div. of Warner Lambert Co., 41 AD3d 522 [2007]; Maiorino v City of New York, 39 AD3d 601 [2007]; Soto v City of Long Beach, 197 AD2d 615 [1993]). The drastic remedy of striking a pleading pursuant to CPLR *6363126 (3) for failure to comply with court-ordered disclosure should be granted only where the conduct of the resisting party is shown to be willful and contumacious (see Bomzer v Parke-Davis, Div. of Warner Lambert Co., 41 AD3d 522 [2007]; Goldstein v Kingsbrook Jewish Med. Ctr., 39 AD3d 816 [2007]; cf. Harris v City of New York, 211 AD2d 663, 664 [1995]).

Here, the appellants’ willful and contumacious conduct can be inferred from their repeated failures, over an extended period of time, to comply with court orders directing disclosure and the absence of any reasonable excuse for these failures (see Maiorino v City of New York, 39 AD3d 601 [2007]; Vanalst v City of New York, 302 AD2d 515 [2003]; Montgomery v City of New York, 296 AD2d 386 [2002]). Accordingly, the Supreme Court providently exercised its discretion in striking the appellants’ answer. Rivera, J.P., Krausman, Florio, Garni and Balkin, JJ., concur.

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