IN RE: W.O.R.C. REALTY CORPORATION (2006)

In consolidated proceedings pursuant to Real Property Tax Law article 7 to review a real property tax assessment for the tax years 1992/1993 through 2003/2004, the Assessor and the Board of Assessment Review of the Town of Islip appeal from (1) stated portions of an order of the Supreme Court, Suffolk County (Bivona, J.), dated August 19, 2004, which, inter alia, upon confirming a Referee's report dated July 6, 2004, denied that branch of their cross motion which was to dismiss the petitions pursuant to CPLR 3126(3) for failing to comply with the discovery provisions of a so-ordered stipulation, and (2) an order of the same court dated August 24, 2004, which denied, as academic, their motion to reject the Referee's report and to dismiss the petitions pursuant to CPLR 3126(3).

ORDERED that the order dated August 19, 2004, is affirmed insofar as appealed from;  and it is further,

ORDERED that the order dated August 24, 2004, is affirmed;  and it is further,

ORDERED that one bill of costs is payable to the petitioners.

 A court is authorized to strike the pleadings of a party who “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed” (CPLR 3126).  “[S]triking a pleading pursuant to CPLR 3126 for failure to comply with court-ordered disclosure should be granted only where the conduct of the resisting party is shown to be willful, contumacious, or in bad faith” (Ranfort v. Peak Tours, 250 A.D.2d 747, 672 N.Y.S.2d 918;  see Frias v. Fortini, 240 A.D.2d 467, 658 N.Y.S.2d 435).  “[A]ctions should be resolved on their merits whenever possible, and the drastic remedy of the striking of a pleading should not be employed without a showing that the failure to comply with discovery demands was willful, contumacious, or in bad faith” (Euro-Central Corp. v. Dalsimer, Inc., 22 A.D.3d 793, 794, 803 N.Y.S.2d 171).

 Contrary to the contentions of the appellants, it was not clearly demonstrated that the petitioner's discovery defaults were willful, contumacious, or done in bad faith as to warrant the extreme sanction of dismissing the petitions pursuant to CPLR 3126(3) (see CPLR 3126[3];  Soto v. New York City Tr. Auth., 25 A.D.3d 546, 806 N.Y.S.2d 420;  Byrne v. City of New York, 301 A.D.2d 489, 490, 753 N.Y.S.2d 132;  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;  Harris v. City of New York, 211 A.D.2d 663, 664, 622 N.Y.S.2d 289).