Kim v. Goldmine Realty Inc.

• Decision Date: 04 May 2010
• Citation: Kim v. Goldmine Realty Inc., 73 A.D.3d 709, 901 N.Y.S.2d 89, 2010 N.Y. Slip Op. 3878 (N.Y. App. Div. 2010)
• Parties: KYUNG SOO KIM, et al., appellants,v.GOLDMINE REALTY, INC., et al., respondents.
• Court: New York Supreme Court — Appellate Division

73 A.D.3d 709

901 N.Y.S.2d 89

2010 N.Y. Slip Op. 03878

KYUNG SOO KIM, et al., appellants,

v.GOLDMINE REALTY, INC., et al., respondents.

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

May 4, 2010.

Sim & Park, LLP, New York, N.Y. (Sang J. Sim of counsel), for appellants.Gary Schoer, Syosset, N.Y., for respondents Beverage Depot, Ltd., and Chris Hansen, and Birnbaum & Skedelsky, Whitestone, N.Y. (David Birnbaum of counsel), for respondents Goldmine Realty, Inc., Susie Kim, and Chris Kim (one brief filed).

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, HOWARD MILLER, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.

In an action to recover a deposit made in contemplation of a commercial lease, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Nelson, J.), dated April 28, 2009, as granted that branch of the defendants' motion which was, in effect, pursuant to CPLR 3126(3) to dismiss the complaint.

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

The drastic remedy of dismissing a complaint based on the plaintiffs' failure to comply with court-ordered disclosure should be granted only where there is a clear showing that the plaintiffs' conduct was willful and contumacious ( see Hutchinson v. Langer, 71 A.D.3d 735, 896 N.Y.S.2d 439; Brown v. Astoria Fed. Sav., 51 A.D.3d 961, 962, 858 N.Y.S.2d 793; Robinson v. Pediatric Assocs. of Irwin Ave., 307 A.D.2d 1029, 1030, 763 N.Y.S.2d 759).

Prior to the subject motion, the plaintiffs failed to respond to any of the defendants' discovery demands and to comply with court orders directing them to do so. Instead, the plaintiffs served and filed a note of issue and certificate of readiness in response to the 90–day demand pursuant to CPLR 3216 contained in the compliance conference order. The certificate of readiness falsely indicated that the bill of particulars had been served. Further, the certificate indicated that discovery proceedings were “not required,” when, in fact, the plaintiffs had failed to respond to a long-outstanding set of interrogatories served by certain of the defendants (hereinafter the interrogatories), and failed to respond to the defendants' separate notices for discovery and inspection. In addition, no depositions had been held, although certain of the defendants had noticed depositions of the plaintiffs and the remaining defendants over a year before. The plaintiffs' willful and contumacious conduct can be inferred from their knowing and wrongful submission of a false certificate of readiness and their repeated failures to comply with court-ordered disclosure ( see Mendez v. City of New York, 7 A.D.3d 766, 767, 778 N.Y.S.2d 501; Alto v. Gilman...