Malek v. Malek

• Decision Date: 24 August 2022
• Docket Number: 2020–08905,Index No. 516802/17
• Parties: Mordechai Hersh MALEK, etc., et al., appellants, v. Chaim Hillel MALEK, et al., respondents.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 773

172 N.Y.S.3d 646 (Mem)

Mordechai Hersh MALEK, etc., et al., appellants,

v.Chaim Hillel MALEK, et al., respondents.

2020–08905

Index No. 516802/17

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

Submitted—April 26, 2022

August 24, 2022

J. Michael Gottesman, Kew Gardens, NY, for appellants.

Howard R. Birnbach, Great Neck, NY, for respondents.

MARK C. DILLON, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action pursuant to RPAPL article 15 to quiet title to real property, the plaintiffs appeal from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated September 14, 2020. The order, insofar as appealed from, denied those branches of the plaintiffs’ motion which were pursuant to CPLR 3126 to strike the defendants’ answer or, in the alternative, to impose monetary sanctions.

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

In or about August 2017, the plaintiffs commenced this action pursuant to RPAPL article 15 to quiet title to real property. In December 2019, the plaintiffs moved pursuant to CPLR 3126 to strike the defendants’ answer or, in the alternative, to impose monetary sanctions, to compel disclosure, and to extend the time to file the note of issue. In an order dated January 17, 2020, the Supreme Court directed that depositions be completed by certain dates, that the defendants produce certain bank statements within 10 days of the date of the order, and, in effect, reserved decision on the plaintiffs’ motion until the return date.

Thereafter, the matter was referred to another justice. In an order dated September 14, 2020, the Supreme Court granted the plaintiffs’ motion to the extent of directing that the defendants provide an affidavit setting forth, inter alia, that they had provided all documents in their possession and control responsive to the plaintiffs’ demands, and extending the plaintiffs’ time to file the note of issue. The court otherwise denied the motion. The plaintiffs appeal.

CPLR 3101(a)(1) provides "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by ... a party, or the officer, director, member, agent or employee of a party." "If any party ... refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed," the court may issue an order to sanction that party ( id. § 3126 ). Such sanctions may include "an order striking out pleadings or parts thereof" ( id. § 3126[3] ).

" ‘The nature and degree of a penalty to be imposed under CPLR 3126 ... is addressed to the court's discretion’ " ( Ambroise v. Palmana Realty Corp., 197 A.D.3d 1226, 1227, 153 N.Y.S.3d 572, quoting Crupi v. Rashid, 157 A.D.3d 858, 859, 67 N.Y.S.3d 478 ; see Henry v. Atlantis Rehabilitation & Residential Healthcare Facility, LLC, 194 A.D.3d 1021, 1022, 149 N.Y.S.3d 217 ). However, before a court invokes the drastic remedy of striking a pleading, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious (see Ambroise v. Palmana Realty Corp., 197 A.D.3d at 1227, 153 N.Y.S.3d 572 ; Henry v. Atlantis Rehabilitation & Residential Healthcare Facility, LLC, 194 A.D.3d at 1022, 149 N.Y.S.3d 217 ; Crupi v. Rashid, 157 A.D.3d at 859, 67 N.Y.S.3d 478 ). " ‘The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse’ " ( Henry v. Atlantis Rehabilitation & Residential Healthcare Facility, LLC, 194 A.D.3d at 1022–1023, 149 N.Y.S.3d 217, quoting Mears v. Long, 149 A.D.3d 823, 823–824, 52 N.Y.S.3d 124 ).

Here, the record does not establish a clear showing of willfulness and contumacious conduct necessary to justify the striking of the defendants’ answer pursuant to CPLR 3126 (see Amos v. Southampton Hosp., 198 A.D.3d 947, 948, 156 N.Y.S.3d 349 ; Burrell v. Baptista, 180 A.D.3d 988, 988, 116 N.Y.S.3d 908 ; Rector v. City of New York, 174 A.D.3d 660, 661, 104 N.Y.S.3d 690 ). Moreover, it appears that while the plaintiffs’ motion was pending, the defendants...