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Dismissed due to discovery violationDecember 17, 2017

Maria S. Masigla, P.T. v United Servs. Auto. Assn., 2017 NY Slip Op 51664(U)(App. Term 2d Dept. 2017)

“The determination to strike a pleading based on a party’s failure to provide discovery pursuant to a court order lies within the sound discretion of the trial court (see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]; Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923 [2012]; Giano v Ioannou, 78 AD3d 768, 770 [2010]; Fishbane v Chelsea Hall, LLC, 65 AD3d 1079, 1081 [2009]). Dismissal of a complaint pursuant to CPLR 3126 is a drastic remedy but is warranted where a party’s conduct is shown to be willful, contumacious or in bad faith (see Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685 [2011]). Plaintiff’s willful and contumacious conduct can be inferred here from its refusal to respond to defendant’s discovery demands after being directed to do so in the December 18, 2014 order, which order noted that any failure to comply therewith would result in the dismissal of the complaint, and from plaintiff’s failure to provide a reasonable excuse for its failure to comply”

If I am a betting man, Defendant asked for taxes, sign in sheets, banking records, payroll information, billing information, LASA agreements, etc.  Plaintiff argued that Defendant did not articulate a basis for invasive discovery.  The Court disagreed twice.  Plaintiff then fell on the sword.  That’s what I see here.  This then followed with a nicely bound brief from Freemont Payne and the rest, as they say, is history.

I have not seem too many Freemont Payne briefs through this office in about 6 months.  I guess I am finally getting along with Oleg (lol)

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