Reset A A Font size: Print

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

ARCURI & SONS, INC., Appellant, v. Marco ALFONSI, et al., Respondents.

Decided: August 18, 1997

Before O'BRIEN, J.P., and SULLIVAN, GOLDSTEIN and LUCIANO, JJ. Albert T. Gervais, Huntington, for appellant. Victoria A. Halvorsen, Hauppauge, for respondents.

In an action, inter alia, to foreclose a mechanic's lien, the plaintiff appeals from an order of the Supreme Court, Nassau County (Alpert, J.), entered June 12, 1996, which denied its motion to extend the mechanic's lien and granted the defendants' cross motion to dismiss the action pursuant to CPLR 3126.

ORDERED that the order is affirmed, with costs.

 While the dismissal of an action for failure to obey a disclosure order is a drastic penalty, a court may impose such a penalty in the exercise of its sound discretion where the conduct of the recalcitrant party is willful and contumacious (see, e.g., Zletz v. Wetanson, 67 N.Y.2d 711, 499 N.Y.S.2d 933, 490 N.E.2d 852;  Ritter Found. v. Tebele, 222 A.D.2d 355, 635 N.Y.S.2d 628;  Canosa v. Abadir, 221 A.D.2d 579, 635 N.Y.S.2d 490;  Burgess v. Rainsford, 221 A.D.2d 399, 634 N.Y.S.2d 393;  Eagle Star Ins. Co. of Am. v. Behar, 207 A.D.2d 326, 615 N.Y.S.2d 418).   Contrary to the plaintiff's contention, the record demonstrates that it deliberately engaged in conduct which frustrated disclosure by repeatedly providing the defendants with illegible and incomplete copies of construction plans.   This willful misconduct violated, inter alia, the court's preliminary conference order (to which the plaintiff consented), and a conditional order of dismissal.   Under these circumstances, we discern no improvident exercise of discretion in the Supreme Court's dismissal of the action.


Copied to clipboard