Shapiro v. Kurtzman

• Decision Date: 22 August 2006
• Docket Number: 2004-07594.
• Citation: 820 N.Y.S.2d 311,2006 NY Slip Op 06278,32 A.D.3d 508
• Parties: MILTON B. SHAPIRO, Appellant, v. DEBORAH SHAPIRO KURTZMAN, Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

32 A.D.3d 508

820 N.Y.S.2d 311

2006 NY Slip Op 06278

MILTON B. SHAPIRO, Appellant, v. DEBORAH SHAPIRO KURTZMAN, Respondent, et al., Defendants.

2004-07594.

Appellate Division of the Supreme Court of the State of New York, Second Department.

August 22, 2006.

In an action, inter alia, to recover the proceeds of certain

loans, the plaintiff appeals from an order of the Supreme Court, Rockland County (Sherwood, J.), dated July 13, 2004, which granted the motion of the defendant Deborah Shapiro Kurtzman pursuant to CPLR 3126 to strike the pleadings and dismiss the second amended complaint insofar as asserted against her.

Ordered that the order is affirmed, with costs.

"To invoke `the drastic remedy of striking a pleading, the court must determine that the party's failure to comply with a disclosure order was the result of willful, deliberate, and contumacious conduct or its equivalent'" (Emanuel v Broadway Mall Props., 293 AD2d 708, 709 [2002], quoting Poulas v U-Haul Intl., 288 AD2d 202 [2001]). However, where a party disobeys a court order and by his or her conduct frustrates the disclosure scheme of the CPLR, as the plaintiff did here, dismissal of a pleading is within the broad discretion of the court (see Kihl v Pfeffer, 94 NY2d 118, 122-123 [1999]; Ritter Found. v Tebele, 222 AD2d 355 [1995]). Here, the plaintiff's failure to comply with a court order directing disclosure, and his delay in providing responses to the respondent's discovery demands, supported an inference that his failure to provide disclosure was willful and contumacious (see Emanuel v Broadway Mall Props., supra). Accordingly, the Supreme Court providently exercised its discretion in dismissing the plaintiff's second amended complaint insofar as asserted against the respondent.

Schmidt, J.P., Santucci and Mastro, JJ., concur.

Lifson, J. (concurring in part and dissenting in part and voting to modify the order, on the law and in the exercise of discretion, by deleting the provision thereof granting the motion and substituting therefor a provision granting the motion unless discovery is completed within 60 days; and so modified, to affirm the order, direct that discovery be supervised by a referee appointed by the Supreme Court, Rockland County, and extend the time to comply until 60 days from the service of a copy of this decision and order):

The parties to this appeal have a history of litigation related to the contributions and distribution of profits of the five nominal corporate defendants. Concededly, the litigation has been contentious and the discovery has been difficult to expeditiously complete due in part to the breadth and scope of the discovery sought.

On or about August 14, 2002 the respondent served the appellant with interrogatories. The appellant failed to respond, and counsel for the respondent sent letters to the appellant's attorney in December 2002 and March 2003 requesting that answers to the interrogatories be served. The appellant served answers on April 9, 2003.

The respondent's attorney sent letters in April and June 2003 advising the appellant's attorney that the answers were unacceptable and asked the appellant to serve amended answers to the interrogatories. The appellant failed to respond.

On June 19, 2003 the respondent moved to compel the appellant to serve proper responses to specific interrogatories. By order dated October 7, 2003 the Supreme Court granted the motion, finding that the original and supplemental answers to the interrogatories were insufficient. The appellant was given additional extensions, over the objections of the respondent, on October 16, 2003, and again on January 12, 2004.

The appellant's supplemental answers to the interrogatories together with additional records supplementing a previous response were served on February 17, 2004. On February 26, 2004 the...