Rock City Sound Inc. v. Farber

• Decision Date: 05 April 2011
• Citation: Rock City Sound Inc. v. Farber, 83 A.D.3d 685, 920 N.Y.S.2d 394, 2011 N.Y. Slip Op. 2861 (N.Y. App. Div. 2011)
• Parties: ROCK CITY SOUND, INC., respondent,v.BASHIAN & FARBER, LLP, et al., appellants.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 685

920 N.Y.S.2d 394

2011 N.Y. Slip Op. 02861

ROCK CITY SOUND, INC., respondent,

v.BASHIAN & FARBER, LLP, et al., appellants.

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

April 5, 2011.

White Fleischner & Fino, LLP, New York, N.Y. (Gil M. Coogler of counsel), for appellants.Benowich Law, LLP, White Plains, N.Y. (Leonard Benowich of counsel), for respondent.MARK C. DILLON, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and SHERI S. ROMAN, JJ.

In an action, inter alia, to recover damages for legal malpractice and violation of Judiciary Law § 487, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated December 9, 2009, as granted that branch of the plaintiff's renewed motion pursuant to CPLR 3126 which was to strike their answer.

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

The genesis of this case is a dispute between the two shareholders of the plaintiff, an audio equipment corporation formed in 1977. The dispute, which generated extensive litigation and several appeals in this Court, arose in or around 2004, when Lee Kalish, one of the shareholders, gave notice to the plaintiff and to Shelton Lindsay, the other shareholder, pursuant to the shareholders' agreement, that he wished to sell his shares for the “Established Value” and withdraw from the corporation. When Kalish and Lindsay were unable to agree on the “Established Value,” Kalish sued Lindsay. The defendants in this action represented the plaintiff and Lindsay in Kalish's lawsuit. Ultimately, Lindsay resigned as a shareholder and filed for personal bankruptcy. Thereafter, Kalish and the bankruptcy trustee who took over Lindsay's interests in the plaintiff voted to commence this action against the defendants, alleging, among other things, legal malpractice and violation of Judiciary Law § 487. In the order appealed from, the Supreme Court, inter alia, granted that branch of the plaintiff's renewed motion pursuant to CPLR 3126 which was to strike the defendants' answer. The defendants appeal, and we affirm the order insofar as appealed from.

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 rests within the discretion of the motion court ( see Raville v. Elnomany, 76 A.D.3d 520, 521, 906 N.Y.S.2d 586; Negro v. St. Charles Hosp. & Rehabilitation Ctr., 44 A.D.3d 727, 728, 843 N.Y.S.2d 178; 1523 Real Estate, Inc. v. East Atl. Props., LLC, 41 A.D.3d 567, 568, 839 N.Y.S.2d 111; Ordonez v. Guerra, 295 A.D.2d 325, 326, 743 N.Y.S.2d 156). However, the “drastic remedy” ( Friedman, Harfenist, Langer & Kraut v. Rosenthal, 79 A.D.3d 798, 801, 914 N.Y.S.2d 196) of striking a pleading pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious ( see Lomax v. Rochdale Vil. Inc., 76 A.D.3d 999, 999, 907 N.Y.S.2d 690; Moray v. City of Yonkers, 76 A.D.3d 618, 619, 906 N.Y.S.2d 508; Cobenas v. Ginsburg Dev. Cos. LLC., 74 A.D.3d 1269, 1270, 903 N.Y.S.2d 238; Xiao Yang Chen v. Fischer, 73 A.D.3d 1167, 901 N.Y.S.2d 682). “ ‘Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply’ ” ( Friedman, Harfenist, Langer & Kraut v. Rosenthal, 79 A.D.3d 798, 800, 914 N.Y.S.2d 196, quoting Savin v. Brooklyn Mar. Park Dev. Corp., 61 A.D.3d 954, 954–955, 878 N.Y.S.2d 178), “ ‘or a failure to comply with court-ordered discovery over an extended period of time’ ” ( Friedman, Harfenist, Langer & Kraut v. Rosenthal, 79 A.D.3d 798, 800, 914 N.Y.S.2d 196, quoting Prappas v. Papadatos, 38 A.D.3d 871, 872, 833 N.Y.S.2d 156; see Russell v. B & B Indus., 309...