B.E.N. Trading Corp. v Shirley Import, Inc.
2009 NY Slip Op 09535 [68 AD3d 629]
December 22, 2009
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 10, 2010

B.E.N. Trading Corp., Plaintiff,
Shirley Import, Inc., et al., Defendants/Third-Party Plaintiffs-Appellants. Binyamin Abadi et al., Third-Party Defendants-Respondents.

[*1] Silver & Silver, LLP, Somerset, N.J. (Herbert J. Silver of counsel), for appellants.

Jonathan A. Stein, Cedarhurst, for respondents.

Judgment, Supreme Court, New York County (Richard B. Lowe, III, J.), entered July 23, 2008, awarding plaintiff the principal sum of $250,000 against defendants, dismissing the third-party action and awarding third-party defendants nominal costs and disbursements against defendants/third-party plaintiffs, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered July 17, 2008, which granted plaintiff's motion to strike defendants' answer, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Defendants' failure to offer a reasonable excuse for their noncompliance with discovery demands, court orders and the court's rules gives rise to an inference of willful and contumacious conduct (Siegman v Rosen, 270 AD2d 14, 15 [2000]). The striking of their answer and third-party complaint was a proper exercise of judicial discretion in light of such conduct (CPLR 3126; see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]). Concur—Sweeny, J.P., Catterson, Renwick, Freedman and Abdus-Salaam, JJ. [Prior Case History: 2008 NY Slip Op 32006(U).]