BROWN v. ASTORIA FEDERAL SAVINGS

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

Irving BROWN, appellant, v. ASTORIA FEDERAL SAVINGS, respondent.

Decided: May 27, 2008

PETER B. SKELOS, J.P., FRED T. SANTUCCI, JOSEPH COVELLO, WILLIAM E. McCARTHY, and CHERYL E. CHAMBERS, JJ. Irving Brown, Essex, Great Britain, appellant pro se. O'Reilly, Marsh & Corteselli, P.C., Garden City, N.Y. (Arthur T. Walsh of counsel), for respondent.

In an action, inter alia, to recover damages for breach of contract and defamation, the plaintiff appeals from an order of the Supreme Court, Kings County (Harkavy, J.), dated March 28, 2007, which granted the defendant's motion pursuant to 22 NYCRR 202.21 to vacate the note of issue and certificate of readiness and pursuant to CPLR 3126 to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

 The plaintiff's certificate of readiness incorrectly stated that all pretrial discovery had been completed.   Because this was a misstatement of a material fact, the filing of the note of issue was a nullity, and that branch of the defendant's motion which was to vacate the note of issue and certificate of readiness was properly granted (see 22 NYCRR 202.21[e];  Gregory v. Ford Motor Credit Co., 298 A.D.2d 496, 497, 748 N.Y.S.2d 507;  Drapaniotis v. 36-08 33rd St. Corp., 288 A.D.2d 254, 732 N.Y.S.2d 583;  Macancela v. Pekurar, 286 A.D.2d 320, 321, 728 N.Y.S.2d 700).

 Furthermore, that branch of the defendant's motion which was to dismiss the complaint was properly granted.   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;  McArthur v. New York City Hous. Auth., 48 A.D.3d 431, 851 N.Y.S.2d 271;  Rowell v. Joyce, 10 A.D.3d 601, 781 N.Y.S.2d 682).   Although dismissing a complaint pursuant to CPLR 3126(3) is a drastic remedy, it is warranted when a party's conduct is shown to be willful and contumacious (see Suazo-Alvarez v. Nordlaw, LLC, 48 A.D.3d 670, 850 N.Y.S.2d 906;  McArthur v. New York City Hous. Auth., 48 A.D.3d 431, 851 N.Y.S.2d 271;  Sowerby v. Camarda, 20 A.D.3d 411, 798 N.Y.S.2d 125).   The willful and contumacious nature of the conduct of the plaintiff, a pro se litigant, can be inferred from his refusal to submit to an oral deposition and to attend a preliminary conference, and from his failure to respond to certain discovery demands, coupled with inadequate explanations for the failures to comply (see Horne v. Swimquip, Inc., 36 A.D.3d 859, 861, 830 N.Y.S.2d 218;  Sowerby v. Camarda, 20 A.D.3d 411, 798 N.Y.S.2d 125;  Devito v. J & J Towing, Inc., 17 A.D.3d 624, 625, 794 N.Y.S.2d 74).

The plaintiff's remaining contentions are either improperly raised for the first time on appeal (see Edme v. Tanenbaum, 50 A.D.3d 624, 855 N.Y.S.2d 596;  Glass v. Estate of Gold, 48 A.D.3d 746, 853 N.Y.S.2d 159;  Ahr v. Karolewski, 48 A.D.3d 719, 853 N.Y.S.2d 172) or without merit.

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