Lazar, Sanders, Thaler & Assocs., LLP v. Lazar

• Decision Date: 23 September 2015
• Docket Number: 2014-00645, Index No. 3736/12.
• Citation: Lazar, Sanders, Thaler & Assocs., LLP v. Lazar, 131 A.D.3d 1133, 16 N.Y.S.3d 326, 2015 N.Y. Slip Op. 6895 (N.Y. App. Div. 2015)
• Parties: LAZAR, SANDERS, THALER & ASSOCIATES, LLP, respondent, v. Terry LAZAR, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 1133

16 N.Y.S.3d 326

2015 N.Y. Slip Op. 06895

LAZAR, SANDERS, THALER & ASSOCIATES, LLP, respondent

v.Terry LAZAR, et al., appellants, et al., defendants.

2014-00645, Index No. 3736/12.

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

Sept. 23, 2015.

Steven G. Legum, Mineola, N.Y., for appellants.

Neal J. Roher, Garden City, N.Y., for respondent.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.

Opinion

In an action, inter alia, to recover damages for breach of contract, breach of fiduciary duty, and conversion, the defendantsTerry Lazar, Lazar Broder, LLP, Robert Haar, RHA Realty Associates, LLC, Mitch Meisner, and Puresafe Water Systems, Inc., appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Nassau County(Sher, J.), entered December 30, 2013, as, upon an order of the same court dated October 9, 2013, inter alia, granting that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike their answer, and after an inquest on the issue of damages, is in favor of the plaintiff and against the defendantsTerry Lazar and Lazar Broder, LLP, in the principal sum of $70,116.50, in favor of the plaintiff and against the defendantRobert Haar in the principal sum of $5,762.50, in favor of the plaintiff and against the defendantRHA Realty Associates, LLC, in the principal sum of $657.50, in favor of the plaintiff and against the defendantMitch Meisner in the principal sum of $11,000, and in favor of the plaintiff and against the defendantPuresafe Water Systems, Inc., in the principal sum of $25,000.

ORDERED that the judgment is modified, on the facts, by deleting the provision thereof awarding damages in favor of the plaintiff and against the defendantsTerry Lazar and Lazar Broder, LLP, in the principal sum of $70,116.50, and substituting therefor a provision holding them jointly and severally liable for the principal sums awarded in favor of the plaintiff and against the other defendants; as so modified, the judgment is affirmed insofar as appealed from, with costs to the plaintiff.

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the Supreme Court (seeWolf v. Flowers,122 A.D.3d 728, 728, 996 N.Y.S.2d 169;Arpino v. F.J.F. & Sons Elec. Co., Inc.,

102 A.D.3d 201, 209, 959 N.Y.S.2d 74 ).The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands or court-ordered discovery is willful and contumacious (seeBrandenburg v. County of Rockland Sewer Dist. # 1, State of N.Y.,127 A.D.3d 680, 6 N.Y.S.3d 570;Arpino v. F.J.F. & Sons Elec. Co., Inc.,102 A.D.3d at 210, 959 N.Y.S.2d 74 ).The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse (seeBrandenburg v. County of Rockland Sewer Dist. # 1, State of N.Y.,127 A.D.3d at 680, 6 N.Y.S.3d 570;Arpino v. F.J.F. & Sons Elec. Co., Inc.,102 A.D.3d at 210,...