MERCHANTS INC v. KASE DRUKER (2005)

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered December 14, 2004, which granted defendants' motion to dismiss the complaint as to all defendants, unanimously affirmed, with costs.   Appeal from order, same court and Justice, entered July 9, 2004, which denied defendant Kase & Druker's motion for summary judgment dismissing the complaint as against it, unanimously dismissed, without costs.

In this action to set aside a transaction under the Debtor and Creditor Law, the court properly found that the law firm of Kase & Druker initially failed to meet its burden of demonstrating entitlement to summary judgment (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ) because of issues of fact concerning the subject fee payment, the services rendered, and the relationship of the parties.   However, this appeal is rendered academic in light of our disposition of the appeal from the later order.

Originally styled as a request for dismissal for want of prosecution (CPLR 3216), which would not have been on the merits, defendants' motion was recast, at the court's suggestion, as one for dismissal for refusal to comply with orders of disclosure, under CPLR 3126 (Kihl v. Pfeffer, 94 N.Y.2d 118, 123, 700 N.Y.S.2d 87, 722 N.E.2d 55 [1999] ) and the Commercial Part Rules.   In light of plaintiff's long-standing patterns of default, lateness and failure to comply with court orders, which gave rise to an inference of willful and contumacious conduct (Wilson v. West Hempstead Generals Football Club, 286 A.D.2d 438, 729 N.Y.S.2d 509 [2001];  Martin v. Brooks, 270 A.D.2d 538, 703 N.Y.S.2d 823 [2000] ), the court appropriately exercised its discretion in dismissing the action against all defendants, and directing entry of judgment accordingly.

We have considered the remaining arguments of Kase & Druker as to summary judgment and plaintiff as to dismissal, and find them without merit.