ANONYMOUS v. DUANE READE INC (2008)

In an action, inter alia, to recover damages for breach of fiduciary duty and violation of 8 NYCRR 29.1, the defendant appeals, as limited by its brief, from (1) so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated November 14, 2006, as denied its motion pursuant to CPLR 3126, among other things, to dismiss the complaint, and (2) so much of an order of the same court dated May 9, 2007, as denied its second motion pursuant to CPLR 3126 to dismiss the complaint and granted that branch of the plaintiff's cross motion which was for leave to extend the time to serve and file a note of issue.

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.

 The determination of whether to strike a pleading lies within the sound discretion of the trial court (see CPLR 3126[3];  Cianciolo v. Trism Specialized Carriers, 274 A.D.2d 369, 370, 711 N.Y.S.2d 441;  Vancott v. Great Atl. & Pac. Tea Co., 271 A.D.2d 438, 705 N.Y.S.2d 640;  Brown v. United Christian Evangelistic Assn., 270 A.D.2d 378, 379, 704 N.Y.S.2d 621).   However, the drastic remedy of striking a pleading is not appropriate absent a clear showing that the failure to comply with discovery demands was willful or contumacious (see CPLR 3126[3];  Harris v. City of New York, 211 A.D.2d 663, 664, 622 N.Y.S.2d 289).   Contrary to the defendant's contentions, it has failed to make a clear showing that the plaintiff's failure to be deposed was willful or contumacious.

 Moreover, although the plaintiff admittedly failed to serve a note of issue by the court-ordered deadline, CPLR 3216 is “extremely forgiving” (Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460), in that it “never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed” (Davis v. Goodsell, 6 A.D.3d 382, 383, 774 N.Y.S.2d 568;  see Di Simone v. Good Samaritan Hosp., 100 N.Y.2d 632, 633, 768 N.Y.S.2d 735, 800 N.E.2d 1102).   Under the circumstances of this case, where the parties had barely commenced discovery proceedings, and where a motion and cross motion to compel discovery were pending at the deadline for the service and filing of the note of issue, the Supreme Court did not improvidently exercise its discretion in refusing to dismiss the action on the basis of the plaintiff's failure to meet that deadline (see Davis v. Goodsell, 6 A.D.3d 382, 774 N.Y.S.2d 568;  McCracken v. Nitto Kohki USA, 271 A.D.2d 510, 706 N.Y.S.2d 348;  Matter of Simmons v. McSimmons, Inc., 261 A.D.2d 547, 690 N.Y.S.2d 643).

The defendant's remaining contentions are without merit.