Apladenaki v. Greenpoint Mortg. Funding, Inc.

• Decision Date: 28 May 2014
• Citation: Apladenaki v. Greenpoint Mortg. Funding, Inc., 2014 NY Slip Op 3790, 117 A.D.3d 976, 986 N.Y.S.2d 589 (N.Y. App. Div. 2014)
• Parties: Chariklia APLADENAKI, appellant, v. GREENPOINT MORTGAGE FUNDING, INC., et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 976

986 N.Y.S.2d 589

2014 N.Y. Slip Op. 03790

Chariklia APLADENAKI, appellant,

v.GREENPOINT MORTGAGE FUNDING, INC., et al., respondents, et al., defendants.

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

May 28, 2014.

Lawrence Spivak, Jamaica, N.Y., for appellant.

Jaspan Schlesinger, LLP, Garden City, N.Y. (Christopher E. Vatter and Antonia M. Donohue of counsel), for respondents.

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX and HECTOR D. LaSALLE, JJ.

In an action, inter alia, to set aside a mortgage, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Strauss, J.), entered February 7, 2012, as granted the motion of the defendants Greenpoint Mortgage Funding, Inc., and Mortgage Electronic Registration Systems, Inc. (MERS), pursuant to CPLR 3126 and 3216 to dismiss the complaint insofar as asserted against them.

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

“The determination whether to strike a pleading for failure to comply with court-ordered disclosure lies within the sound discretion of the trial court” (Fishbane v. Chelsea Hall, LLC, 65 A.D.3d 1079, 1081, 885 N.Y.S.2d 718). “However, the drastic remedy of striking 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. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply with court-ordered discovery over an extended period of time” ( Orgel v. Stewart Tit. Ins. Co., 91 A.D.3d 922, 923, 938 N.Y.S.2d 131 [internal quotation marks and citations omitted]; see Rock City Sound, Inc. v. Bashian & Farber, LLP, 83 A.D.3d 685, 686–687, 920 N.Y.S.2d 394). Here, the plaintiff's repeated failure to appear for a deposition, coupled with her failure to proffer a reasonable excuse for that failure, supports an inference that her conduct was willful and contumacious ( see Orgel v. Stewart Tit. Ins. Co., 91 A.D.3d at 924, 938 N.Y.S.2d 131;Bort v. Perper, 82 A.D.3d 692, 695, 918 N.Y.S.2d 151). Accordingly, the Supreme Court properly granted that branch of the motion of the defendants Greenpoint Mortgage Funding, Inc., and Mortgage Electronic Registration Systems, Inc. (MERS) (hereinafter together the respondents), which was pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them.

Moreover, the Supreme Court also properly granted that branch of the respondents' motion which was pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against them for want of prosecution. Although the action had previously been on the trial calendar ( see Apladenaki v. Greenpoint Mtg. Funding, Inc., 117 A.D.3d 975, 986 N.Y.S.2d 588, 2014 WL 2198392 [Appellate Division Docket No. 2010–09028; decided herewith] ), it was stricken therefrom, necessitating the filing of a new...