WHITLEY v. Kenneth Pieri, Defendant-Respondent. (2004)

We agree with plaintiff that Supreme Court erred in denying her motion to strike the amended answer of Kenneth Pieri (defendant) pursuant to CPLR 3126 and for judgment against him, and thus we modify the order accordingly.   Upon reviewing the discovery order of the Referee pursuant to CPLR 3104(d) and properly determining that defendant failed to comply with CPLR 3122(c), the court nevertheless abused its discretion in affording defendant one last opportunity to comply with the statute.   In any event, we further conclude that plaintiff's motion to strike defendant's amended answer and for judgment against defendant should have been granted based on defendant's willful and contumacious conduct (see generally Kihl v. Pfeffer, 94 N.Y.2d 118, 122, 700 N.Y.S.2d 87, 722 N.E.2d 55;  Lakewood Constr. Co. v. Brody, 1 A.D.3d 1007, 769 N.Y.S.2d 664).   We remit the matter to Supreme Court for a hearing on damages.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting plaintiff's motion, striking the amended answer of defendant Kenneth Pieri and granting plaintiff judgment against him and as modified the order is affirmed with costs to plaintiff, and the matter is remitted to Supreme Court, Erie County, for further proceedings.

MEMORANDUM: