OASIS SPORTSWEAR INC v. REGO

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Supreme Court, Appellate Division, First Department, New York.

OASIS SPORTSWEAR, INC., Plaintiff–Respondent, v. Patricia REGO, et al., Defendants–Appellants.

Patricia Rego, et al., Third–Party Plaintiffs–Appellants, v. Joseph Trachtman, Third–Party Defendant–Respondent. [And Another Action].

Decided: May 10, 2012

FRIEDMAN, J.P., SWEENY, DeGRASSE, ABDUS–SALAAM, ROMÁN, JJ. Kevin T. Mulhearn, P.C., Orangeburg (Kevin T. Mulhearn of counsel), for appellants. Cole, Schotz, Meisel, Forman & Leonard, P.A., New York (Jed M. Weiss of counsel), for respondents.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered November 16, 2011, which, inter alia, granted plaintiff's motion to strike defendants' answer and counterclaims and ordered the case to inquest, unanimously affirmed, without costs.

Given that defendants had been ordered on three prior occasions to produce certain documents, and had been expressly warned that failure to do so again would result in the striking of their pleadings, the IAS court did not abuse its discretion in striking the pleadings, under CPLR 3126, when defendants again failed to produce the requested records (De Socio v. 136 E. 56th St. Owners, Inc., 74 A.D.3d 606, 903 N.Y.S.2d 45 [2010] ).   We note that the repeated failure of defendants to produce, despite express orders to do so, amply demonstrates wilfulness and the lack of any reasonable excuse for such failure.   Moreover, that the documents were relevant to plaintiff's defense to certain counterclaims constitutes prejudice sufficient to warrant the particular sanction imposed.   To the extent defendants failed to comply with a conditional order of preclusion, they failed to demonstrate a reasonable excuse or a meritorious defense (see Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 917 N.Y.S.2d 68, 942 N.E.2d 277 [2010] ).