SOFRA MEDITERRANEAN GRILL LTD v. CHEBLI (2026)

DECISION & ORDER

In an action, inter alia, for declaratory relief, the defendant third-party plaintiff appeals, and the plaintiff and the third-party defendants cross-appeal, from an order of the Supreme Court, Queens County (Joseph Risi, J.), entered January 12, 2024.  The order, insofar as appealed from, granted that branch of the motion of the plaintiff and the third-party defendants which was pursuant to CPLR 3126 to strike the defendant third-party plaintiff's answer with counterclaims and the third-party complaint.  The order, insofar as cross-appealed from, granted the cross-motion of the defendant third-party plaintiff pursuant to CPLR 3126 to strike the amended complaint and the answer of the third-party defendants.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The plaintiff commenced this action, inter alia, for declaratory relief against the defendant third-party plaintiff (hereinafter the defendant).  The defendant commenced a third-party action, among other things, for declaratory relief against the third-party defendants, Yuksel Akdas and Hadice Akdas, two individuals purportedly related to the plaintiff's business.  In July 2022, the plaintiff and the third-party defendants moved, inter alia, pursuant to CPLR 3126 to strike the defendant's answer with counterclaims and the third-party complaint for his failure to comply with previous court orders relating to deposition discovery.  The defendant cross-moved pursuant to CPLR 3126 to strike the amended complaint and the answer of the third-party defendants.  In an order entered January 12, 2024, the Supreme Court, among other things, granted that branch of the motion of the plaintiff and the third-party defendants and granted the defendant's cross-motion.  The defendant appeals, and the plaintiff and the third-party defendants cross-appeal.

“Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” (Muhammad v Ramadan, 228 AD3d 675, 675 [internal quotation marks omitted];  see CPLR 3126;  Aha Sales, Inc. v Creative Bath Prods., Inc., 110 AD3d 1019, 1019).  “When a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is within the court's discretion to strike or dismiss a pleading” (Muhammad v Ramadan, 228 AD3d at 675–676 [internal quotation marks omitted] ).  “The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands or court-ordered discovery was the result of willful and contumacious conduct” (Allstar Elecs., Inc. v DeLuca, 188 AD3d 1121, 1122).  “Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time” (Muhammad v Ramadan, 228 AD3d at 676 [internal quotation marks omitted];  see Broccoli v Kohl's Dept. Stores, Inc., 171 AD3d 846, 847).

Here, the Supreme Court providently exercised its discretion in granting that branch of the motion of the plaintiff and the third-party defendants which was pursuant to CPLR 3126 to strike the defendant's answer with counterclaims and the third-party complaint.  The defendant's willful and contumacious conduct can be inferred from his failure over an extended period of time, inter alia, to schedule a deposition and subsequent failure to appear for a scheduled deposition (see Reyes v U.S. Sec. Assoc.  Aviation Servs., Inc., 230 AD3d 708, 709;  Guardado v K.B.G. Commercial, Inc., 209 AD3d 721, 722).  The court also providently exercised its discretion in granting the defendant's cross-motion pursuant to CPLR 3126 to strike the amended complaint and the answer of the third-party defendants.  The willful and contumacious conduct of the plaintiff and the third-party defendants can be inferred from their repeated failures to comply with the court-ordered discovery, to respond to the defendant's demands for discovery without an adequate excuse, and to appear for a scheduled deposition (see Muhammad v Ramadan, 228 AD3d at 676;  Broccoli v Kohl's Dept. Stores, Inc., 171 AD3d at 847).

Contrary to the defendant's contention, the Supreme Court was not required to deny the motion of the plaintiff and the third-party defendants due to their failure to submit a word count certification, as this was a technical defect and courts may overlook technical defects (see Taveras v Incorporated Vil. of Freeport, 225 AD3d 822, 823;  Anuchina v Marine Transp.  Logistics, Inc., 216 AD3d 1126, 1127).

IANNACCI, J.P., FORD, LANDICINO and QUIRK, JJ., concur.