Pangea Farm, Inc. v. Sack
| Decision Date | 29 May 2008 |
| Docket Number | 503815. |
| Citation | 51 A.D.3d 1352,2008 NY Slip Op 04811,858 N.Y.S.2d 477 |
| Parties | PANGEA FARM, INC., Appellant, v. LEENY SACK, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Appeal from an order of the Supreme Court (Dowd, J.), entered March 15, 2007 in Chenango County, which, among other things, denied plaintiff's motion to strike defendant's answer.
SPAIN, J.P.
Plaintiff commenced this action against defendant in September 2003 seeking to recover approximately $3,100 allegedly obtained by defendant through breach of contract, unjust enrichment and/or conversion.1 Defendant answered and raised various affirmative defenses, an amended complaint was served and discovery ensued. When that process stalled, plaintiff sought Supreme Court's assistance and, ultimately, a scheduling order was filed directing that all discovery be completed by June 30, 2006. In the interim, defendant discharged her attorney and new counsel was retained. Correspondence and discussions between counsel for the parties continued and additional discovery materials were provided by defendant—albeit after the court-ordered deadline.
Thereafter, in October 2006, plaintiff moved to strike defendant's answer for failing to timely comply with the scheduling order. Defendant opposed that relief and cross-moved for leave to serve an amended answer.2 Supreme Court, in a bench ruling, denied plaintiff's motion and granted defendant's cross motion to serve an amended answer, with the proviso that such pleading not include any claim for punitive damages. When defense counsel failed to timely submit a proposed order, plaintiff sought to have defendant's cross motion deemed abandoned. Supreme Court's bench decision eventually was reduced to the order from which this appeal is taken, following which plaintiff moved to strike those portions of defendant's amended answer not in compliance with Supreme Court's March 2007 order. Defendant responded by withdrawing the amended answer. Plaintiff now appeals, contending that Supreme Court abused its discretion in failing to strike defendant's answer.
Where, as here, a party fails to comply with a discovery order, CPLR 3126 authorizes the court to fashion an appropriate remedy, the nature and degree of which is a matter committed to the court's sound discretion (see Gokey v DeCicco, 24 AD3d 860, 861 [2005]; Appler v Riverview Obstetrics & Gynecology, P.C., 9 AD3d 577, 578 [2004]; Cavanaugh v Russell Sage Coll., 4 AD3d 660 [2004]). The penalty imposed will not be disturbed absent a clear abuse of the court's discretion (see Cavanaugh v Russell Sage Coll., 4 AD3d at 660; Saratoga Harness Racing v Roemer, 290 AD2d 928, 929 [2002]), and "the drastic sanction of dismissal of an answer should only be imposed where the moving party makes a clear showing that the defendant willfully or contumaciously failed to comply with an order for disclosure" (Fraracci v Lasouska, 283 AD2d 735, 736 [2001]; see Altu v Clark, 20 AD3d 749, 750 [2005]; Brothers v Bunkoff Gen. Contrs., 296 AD2d 764, 765 [2002]; Robbins v Navistar Intl. Transp. Corp., 224 AD2d 912, 913 [1996]).
Here, although plaintiff portrays this action as a relatively straightforward breach of contract claim, it appears that the...
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...was "too harsh a penalty" for failure to comply with discovery where the plaintiff was in poor health); Pangea Farm, Inc. v. Sack, 51 A.D.3d 1352, 1354, 858 N.Y.S.2d 477, 478-79 (App. Div. 3d Dep't 2008) (holding that the supreme court "did not abuse its discretion in denying plaintiffs mot......