Hill v. Douglas Elliman-Gibbons & Ives, ELLIMAN-GIBBONS

• Decision Date: 01 December 1998
• Docket Number: ELLIMAN-GIBBONS
• Citation: 680 N.Y.S.2d 848
• Parties: 1998 N.Y. Slip Op. 10,572 Panathy HILL, Plaintiff-Appellant, v. DOUGLAS& IVES, et al., Defendants-Respondents, and 860 Fifth Avenue Corp., et al., Defendants. . Supreme Court of New York, Appellate Division, First Department
• Court: New York Supreme Court — Appellate Division

Page 848

680 N.Y.S.2d 848

1998 N.Y. Slip Op. 10,572

Panathy HILL, Plaintiff-Appellant, v. DOUGLAS ELLIMAN-GIBBONS & IVES, et al., Defendants-Respondents, and 860 Fifth Avenue Corp., et al., Defendants.

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

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

Dec. 1, 1998.

Madeline Lee Bryer, for Plaintiff-Appellant.

Robert R. Lewis, for Defendants-Respondents.

Order, Supreme Court, New York County (Emily Goodman, J.), entered May 28, 1998, which, after an evidentiary hearing, denied plaintiff's motion to strike the answer of defendants-respondents Douglas Elliman-Gibbons & Ives and Insignia Financial Group, Inc., unanimously affirmed, without costs.

In ruling upon plaintiff's motion to strike defendants-respondents' pleadings, the motion court properly inquired, not merely as to whether there had been spoliation of evidence, but also as to whether defendants-respondents' failure to comply with discovery orders had been willful, contumacious, or effected in bad faith (see, Orlando v. Arcade Cleaning Corp., --- A.D.2d ----, 676 N.Y.S.2d 164; cf., Squitieri v. City of New York, 248 A.D.2d 201, 669 N.Y.S.2d 589). The court's conclusion that plaintiff had not met its burden as movant (see, Forman v. Jamesway Corp., 175 A.D.2d 514, 515, 572 N.Y.S.2d 782) to demonstrate defendants-respondents' willful noncompliance with their discovery obligations, and accordingly had not demonstrated its right to the drastic relief requested, did not constitute an improvident exercise of discretion (see, Dauria v. City of New York, 127 A.D.2d 459, 460, 511 N.Y.S.2d 271).

MILONAS, J.P., ELLERIN, WILLIAMS and ANDRIAS, JJ., concur.