LA VALLE v. Heil Corporation, Appellant. (1997)

In an action to recover damages for personal injuries, the defendant Heil Corporation appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Price, J.), dated May 13, 1996, as denied that branch of its motion which was to strike the cross claim of the defendant City of New York Department of Sanitation against it.

ORDERED that the order is reversed insofar as appealed from, as a matter of discretion, with costs, and that branch of the appellant's motion which was to strike the cross claim of the defendant City of New York Department of Sanitation against the appellant is granted.

It is apparent from the record in this case that the defendant City of New York Department of Sanitation has adopted “a pattern of partially complying” with demands for disclosure, “only after being directed to do so by court order”, resulting in a delay in the completion of discovery of over three years (Cauley v. Long Is. R.R. Co., 234 A.D.2d 252, ----, 651 N.Y.S.2d 80).

Consequently, on this third motion by the appellant pursuant to CPLR 3126, in this third order dealing with the failure of the City of New York Department of Sanitation to comply with disclosure demands, the court improvidently exercised its discretion in denying that branch of the appellant's motion which was to strike the cross claim of the City of New York Department of Sanitation against it.   The conduct of the City of New York Department of Sanitation in frustrating disclosure was willful, justifying such relief (see, Harris v. City of New York, 211 A.D.2d 663, 664, 622 N.Y.S.2d 289).

MEMORANDUM BY THE COURT.