Friedman, Harfenist, Langer & Kraut v. Rosenthal

• Decision Date: 14 December 2010
• Citation: Friedman, Harfenist, Langer & Kraut v. Rosenthal, 914 N.Y.S.2d 196, 79 A.D.3d 798 (N.Y. App. Div. 2010)
• Parties: FRIEDMAN, HARFENIST, LANGER & KRAUT, respondent, v. Richard Bruce ROSENTHAL, appellant.
• Court: New York Supreme Court — Appellate Division

914 N.Y.S.2d 196

79 A.D.3d 798

FRIEDMAN, HARFENIST, LANGER & KRAUT, respondent,

v.Richard Bruce ROSENTHAL, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 14, 2010.

Wilkie & Wilkie, Hempstead, N.Y. (Robert A. Wilkie of counsel), for appellant.

Friedman, Harfenist, Kraut & Perlstein LLP, Lake Success, N.Y. (Steven J. Harfenist and Heather L. Smar of counsel), for respondent.

STEVEN W. FISHER, J.P., FRED T. SANTUCCI, RANDALL T. ENG, and SANDRA L. SGROI, JJ.

In an action, inter alia, to recover unpaid legal fees, the defendant appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Galasso, J.), entered August 13, 2009, as granted that branch of the plaintiff's motion pursuant to CPLR 3126(3) which was to strike his answer, in effect, directed entry of judgment in favor of the plaintiff in the sum of $37,939.64, with interest, and severed and dismissed his counterclaim, (2) from an order of the same court dated October 14, 2009, which denied his motion for leave to renew and reargue his opposition to the plaintiff's motion, and (3) from a judgment of the same court entered December 24, 2009, which, upon the orders, is in favor of the plaintiff and against him in the total sum of $48, 534.67.

ORDERED that the appeal from so much of the order dated October 14, 2009, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the appeals from so much of the order dated October 14, 2009, as denied that branch of the defendant's motion which was for leave to renew, and the appeal from the order entered August 13, 2009, are dismissed, without costs or disbursements; and it is further,

ORDERED that the judgment is reversed, on the facts, and in the exercise of discretion, without costs or disbursements, that branch of the defendant's motion which was for leave to renew is granted, and, upon renewal, so much of the order entered August 13, 2009, as granted that branch of the plaintiff's motion pursuant to CPLR 3126(3) which was to strike the answer, in effect, directed entry of judgment in favor of the plaintiff in the sum of $37.939.64, with interest, and severed and dismissed his counterclaim is vacated, and that branch of the plaintiff's motion which was pursuant to CPLR 3126(3) to strike the answer is granted only to the extent of imposing a monetary sanction upon the defendant in the sum of $5,000, payable to the plaintiff, and that branch of the motion is otherwise denied, and the order dated October 14, 2009, is modified accordingly; and it is further,

ORDERED that in the event that the defendant does not pay the sum of $5,000 to the plaintiff on or before 30 days after the service of a copy of this decision and order by the plaintiff upon the defendant, the judgment is affirmed, with costs.

The defendant's appeals from so much of the order datedOctober 14, 2009, as denied that branch of his motion which was for leave to renew, and from the order entered August 13, 2009, must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on those appeals are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501[a][1] ).

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 rests within the discretion of the Supreme Court ( see Raville v. Elnomany, 76 A.D.3d 520, 906 N.Y.S.2d 586; Negro v. St. Charles Hosp. & Rehabilitation Ctr., 44 A.D.3d 727, 728, 843 N.Y.S.2d 178; 1523 Real Estate, Inc. v. East Atl. Props., LLC, 41 A.D.3d 567, 568, 839 N.Y.S.2d 111). "[W]hen a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is well within the Trial Judge's discretion [to dismiss a pleading]" ( Kihl v. Pfeffer, 94 N.Y.2d 118, 122, 700 N.Y.S.2d 87, 722 N.E.2d 55). Strong public policy, however, favors the resolution of cases on the merits ( see Negro v. St. Charles Hosp. & Rehabilitation Ctr., 44 A.D.3d at 728, 843 N.Y.S.2d 178; 1523 Real Estate, Inc. v. East Atl. Props., LLC, 41 A.D.3d at 568, 839 N.Y.S.2d 111; A.F.C. Enters., Inc. v. New York City School Constr. Auth., 33 A.D.3d 737, 822 N.Y.S.2d 775). Accordingly, the "drastic remedy" ( Lomax v. Rochdale Vil., Inc., 76 A.D.3d 999, 999, 907 N.Y.S.2d 690; see Moray v. City of Yonkers, 76 A.D.3d 618, 906 N.Y.S.2d 508) of the striking of a pleading pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious ( see Lomax v. Rochdale Vil. Inc., 76 A.D.3d at 999, 907 N.Y.S.2d 690; Cobenas v. Ginsburg Dev. Cos., LLC, 74 A.D.3d 1269, 903 N.Y.S.2d 238; Xiao Yang Chen v. Fischer, 73 A.D.3d 1167, 901 N.Y.S.2d 682; Voutsinas v. Voutsinas, 43 A.D.3d 1156, 1157, 843 N.Y.S.2d 130). "Willful and contumacious...