FIVE STAR ELECTRIC CORP v. 10 (2025)

Order, Supreme Court, New York County (Joel M. Cohen, J.), entered October 1, 2024, which granted the motion of defendants the Trustees of Columbia University and Lend Lease (US) Construction LMB, Inc. formerly known as Bovis Lend Lease LMB, Inc. to strike plaintiff's complaint in accordance with CPLR 3126, unanimously affirmed, without costs.

We give “substantial deference” to the motion court's “considerable discretion” to impose penalties pursuant to CPLR 3126, and “absent clear abuse,” will not disturb such a penalty (Arts4All, Ltd. v. Hancock, 54 A.D.3d 286, 863 N.Y.S.2d 193 [1st Dept. 2008], affd 12 N.Y.3d 846, 881 N.Y.S.2d 390, 909 N.E.2d 83 [2009], affd 13 N.Y.3d 812, 890 N.Y.S.2d 432, 918 N.E.2d 945 [2009]).  Here, Supreme Court providently exercised its discretion in striking plaintiff's complaint (see e.g. Williams v. Shiva Ambulette Serv. Inc., 102 A.D.3d 598, 599, 959 N.Y.S.2d 53 [1st Dept. 2013]).  The record shows that plaintiff exhibited a pattern of delay in responding to discovery, in that it not only failed to respond to interrogatory demands in June and April 2020, but also ignored the court's order directing a response to the interrogatories within 30 days.  Plaintiff ultimately provided responses on August 10, 2021, but the court deemed those responses insufficient and required a supplement.  Three years later in 2024, plaintiff attached to its motion papers opposing the motion underlying this appeal supplemental responses to the interrogatories propounded by defendant Lend Lease (US) Construction.  However, plaintiff did not submit supplemental responses to defendant Columbia University's interrogatories.  This pattern of years-long delay demonstrated that plaintiff's noncompliance was willful and contumacious (see Henderson–Jones v. City of New York, 87 A.D.3d 498, 504, 928 N.Y.S.2d 536 [1st Dept. 2011];  see also Harris v. Kay, 168 A.D.3d 419, 419, 88 N.Y.S.3d 881 [1st Dept. 2019], lv denied 33 N.Y.3d 903, 2019 WL 1996318 [2019]).

We have considered and rejected plaintiff's remaining claims.