SLONIGER v. NIAGARA MOHAWK POWER CORPORATION (2003)

 Supreme Court erred in granting the motion of fourth-party plaintiff for leave to serve a second amended fourth-party complaint to the extent that fourth-party plaintiff sought to add a cause of action alleging that fourth-party defendants breached their contractual obligation to procure insurance coverage for the benefit of fourth-party plaintiff.   That cause of action, which accrued at the time of the alleged breach, is time-barred (see Polat v. Fifty CPW Tenants Corp., 249 A.D.2d 163, 163-164, 672 N.Y.S.2d 56;  Vanarthros v. St. Francis Hosp., 234 A.D.2d 450, 451, 651 N.Y.S.2d 164;  see generally Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402, 599 N.Y.S.2d 501, 615 N.E.2d 985).   The court properly granted the motion, however, to the extent that fourth-party plaintiff sought to add a cause of action alleging that fourth-party defendants breached their agreement to indemnify fourth-party plaintiff with respect to the claims asserted against it in both the main action and the third-party action.   That cause of action, which did not accrue until fourth-party plaintiff made payment on those claims, is timely (see Fisher v. Preston, 251 A.D.2d 843, 844, 674 N.Y.S.2d 516;  Polat, 249 A.D.2d at 164, 672 N.Y.S.2d 56).   Finally, the court erred in granting the motion of fourth-party plaintiff to strike the answer of fourth-party defendants and in granting judgment in favor of fourth-party plaintiff based upon fourth-party defendants' delay in complying with discovery demands.  “[T]he harsh remedy of striking an answer should be granted only where it is conclusively shown that the discovery default was deliberate or contumacious” (Gadley v. U.S. Sugar Co., 259 A.D.2d 1041, 1042, 688 N.Y.S.2d 350;  see Brothers v. Bunkoff Gen. Contrs., 296 A.D.2d 764, 765, 745 N.Y.S.2d 284).   In our view, fourth-party plaintiff failed to make that conclusive showing.

In appeal No. 1, we therefore modify the order by denying the motion of fourth-party plaintiff for leave to serve a second amended fourth-party complaint to the extent that fourth-party plaintiff sought to add a cause of action alleging that fourth-party defendants breached their contractual obligation to procure insurance coverage for the benefit of fourth-party plaintiff.   In appeal No. 2, we reverse the order, deny the motion of fourth-party plaintiff to strike fourth-party defendants' answer to the second amended fourth-party complaint, reinstate that answer and vacate the award of judgment in favor of fourth-party plaintiff.   In view of our determination, the judgment in appeal No. 3 must be vacated.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motion of fourth-party plaintiff for leave to serve a second amended fourth-party complaint to the extent that fourth-party plaintiff sought to add a cause of action alleging that fourth-party defendants breached their contractual obligation to procure insurance coverage for the benefit of fourth-party plaintiff and as modified the order is affirmed without costs.

MEMORANDUM: