Eagle Star Ins. Co. of America v. Behar
| Decision Date | 01 August 1994 |
| Citation | 615 N.Y.S.2d 418,207 A.D.2d 326 |
| Parties | EAGLE STAR INSURANCE COMPANY OF AMERICA, Appellant, v. Norman BEHAR, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Speyer & Perlberg, Melville (John M. Speyer and Kenneth A. Ricken, of counsel), for appellant.
Stephan B. Gleich & Associates, Great Neck (James T. Gerardi, of counsel), for respondents.
Before SULLIVAN, J.P., and LAWRENCE, PIZZUTO and FRIEDMANN, JJ.
MEMORANDUM BY THE COURT.
In an action for a judgment declaring a conveyance void as fraudulent, the plaintiff appeals from an order of the Supreme Court, Nassau County (Burke, J.), dated February 11, 1992, which dismissed the complaint insofar as it is asserted against the defendant Rita Behar pursuant to CPLR 3126.
ORDERED that the order is affirmed, with costs.
The drastic sanction of unconditionally striking a pleading pursuant to CPLR 3126 should not be invoked unless the resisting party's default is shown to be deliberate and contumacious (see, Furniture Fantasy, Inc. v. Cerrone, 154 A.D.2d 506, 546 N.Y.S.2d 133). However, where a party disobeys a court order and by his conduct frustrates the disclosure scheme provided by the CPLR, dismissal of the complaint is within the broad discretion of the trial court (see, Zletz v. Wetanson, 67 N.Y.2d 711, 499 N.Y.S.2d 933, 490 N.E.2d 852).
Here, by order dated June 5, 1991, the plaintiff was directed to produce a "knowledgeable" witness, after having failed to do so at a prior examination, as well as its file and a true copy of any appraisals of the subject premises. The order further warned the plaintiff that the failure to obey the court's directive would result in the dismissal of the action as against the defendant Rita Behar. On July 26, 1991, the plaintiff produced a witness whose only knowledge of the case stemmed from his...
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