HOWE v. JEREMIAH

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

Mary E. HOWE, appellant, v. Costley A. JEREMIAH, respondent.

Decided: May 27, 2008

PETER B. SKELOS, J.P., DAVID S. RITTER, ANITA R. FLORIO, and THOMAS A. DICKERSON, JJ. Jack Gross, Bronx, N.Y., for appellant. Borchert, Genovesi, LaSpina & Landicino, P.C., Whitestone, N.Y. (Gregory M. LaSpina and Stephen J. Smith of counsel), for respondent.

In an action, inter alia, pursuant to RPAPL article 15 to determine the rights of the parties to certain real property, the plaintiff appeals from an order of the Supreme Court, Kings County (Schack, J.), dated January 26, 2007, which granted the defendant's motion pursuant to CPLR 3126 to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

 The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court (see Kihl v. Pfeffer, 94 N.Y.2d 118, 122-123, 700 N.Y.S.2d 87, 722 N.E.2d 55).   The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful or contumacious (see Devito v. J & J Towing, Inc., 17 A.D.3d 624, 794 N.Y.S.2d 74).   The willful or contumacious character of a party's conduct can be inferred from the party's repeated failure to respond to demands and/or to comply with discovery orders (see McArthur v. New York City Hous. Auth., 48 A.D.3d 431, 851 N.Y.S.2d 271).   Contrary to the plaintiff's contentions, the willful or contumacious character of the conduct at issue could be properly inferred by the court from her repeated failures to comply with the defendant's discovery demands and the court's discovery orders to provide certain disclosure without an adequate excuse (id.).

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