Goldstein v. Cibc World Markets Corp.

• Decision Date: 13 June 2006
• Docket Number: M-2499.,8763A.,8763.
• Citation: 30 A.D.3d 217,817 N.Y.S.2d 19,2006 NY Slip Op 04768
• Parties: NORMAN GOLDSTEIN, as Executor of ELLSWORTH GOLDSTEIN, Deceased, Appellant, v. CIBC WORLD MARKETS CORP. et al., Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

30 A.D.3d 217

817 N.Y.S.2d 19

2006 NY Slip Op 04768

NORMAN GOLDSTEIN, as Executor of ELLSWORTH GOLDSTEIN, Deceased, Appellant, v. CIBC WORLD MARKETS CORP. et al., Respondents, et al., Defendant.

8763.

8763A.

M-2499.

Appellate Division of the Supreme Court of the State of New York, First Department.

June 13, 2006.

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered December 16, 2004, which denied plaintiff's motion denominated one to renew and reargue an order, same court and Justice, entered June 24, 2004, sua sponte dismissing the complaint pursuant to CPLR 3126, deemed to be an order denying a motion to vacate the order of June 24, 2004, and judgment, same court and Justice, entered July 13, 2004, pursuant thereto, and, so considered, said order unanimously affirmed, without costs. Appeal from the aforesaid judgment unanimously dismissed, without costs, in view of the foregoing.

While a pleading ordinarily should not be stricken absent a motion on notice, any concerns in that regard are dispelled by the repeated warnings the court gave plaintiff's attorney at numerous compliance conferences that continued noncompliance could result in a dismissal, and the opportunity plaintiff had to challenge the dismissal in a subsequent motion made on notice from which he now appeals (see Bear, Stearns & Co., Inc. v Enviropower, LLC, 21 AD3d 855 [2005]). Plaintiff's year-long pattern of noncompliance with the court's repeated compliance conference orders gave rise to an inference of willful and contumacious conduct (see Merchants T & F Inc. v Kase & Druker, 19 AD3d 134 [2005]). The record does not bear out plaintiff's assertion that by the time of the dismissal, he had provided the disclosure sought. Nor does it bear out plaintiff's assertion that the noncompliance was due to his attorney's illness. We have considered and rejected plaintiff's other arguments.

Concur — Tom, J.P., Saxe, Friedman, Sullivan and McGuire, JJ.