By notice of motion filed on March 31, 2009, under motion sequence number one, plaintiff, Federico Deschamps, moves for an order: 1) striking defendant's answer and dismissing defendant's counterclaims pursuant to CPLR §§ 3124 and 3126 based on defendant's failure to comply with discovery; 2) granting partial summary judgment pursuant to CPLR § 3212(e) and ordering a sale of a premises known as 561 56th Street, Brooklyn, New York ("subject property"); 3) scheduling an inquest to determine the respective interests of the parties in subject property and 4) appointing plaintiff as temporary receiver of the subject property pursuant to CPLR § 6401.

On April 20, 2007, plaintiff commenced the instant partition action against his mother, by filing a summons and complaint. The defendant interposed a verified answer and four counterclaims dated June 12, 2007. Plaintiff joined issue by a verified reply dated April 21, 2007. Since June 23, 1980, they have owned the subject premises as tenants in common. The defendant is an octogenarian.

Defendant opposes the motion with an affirmation of counsel and an annexed copy of defendant's response to plaintiff's discovery demands.

"If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: 1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or 2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or 3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party."

Striking an answer is a drastic remedy that may only be granted if the defendant's failure to comply with a disclosure order was the result of willful, deliberate, and [*3]contumacious conduct or its equivalent (see CPLR § 3126 (3); Palmenta v. Columbia Univ., 266 AD2d 90 [1st Dept.,1999]). The willful and contumacious character of a party's conduct can be inferred from that party's repeated failures to appear for examination before trial, coupled with inadequate excuses for these defaults (McArthur v. New York City Housing Auth., 48 AD3d 431 [2nd Dept., 2008]).

It is also well settled that the determination whether or not to strike a pleading lies within the sound discretion of the trial court (see CPLR 3126; Patterson v. Greater NY Corp. of Seventh Day Adventists, 284 AD2d 382 [2nd Dept., 2001]). That is to say, nothing mandates that a court strike a pleading.

The burden of establishing that a failure or refusal to comply with disclosure was the result of willful, deliberate, or contumacious conduct, so as to support an order of preclusion or the striking of a pleading, rests with the party seeking the order (See Goodman, Rackower, & Agiato v. Lieberman, 260 AD2d 599[2nd Dept., 1999]). The burden then shifts to the non-moving party to demonstrate a reasonable excuse (See, Furniture Fantasy v. Cerrone, 154 AD2d 506 [2nd Dept.,1989]).

On November 29, 2007, plaintiff alleges that he served a demand for discovery and inspection and a notice to take deposition upon oral examination on defendant's attorney. In addition, a preliminary conference was held on March 3, 2008 in the intake part of this court and an order issued directing the parties to comply with all outstanding discovery requests by September 15, 2008 and for depositions to be held on or before May 15, 2008. Following a compliance conference held on October 29, 2008 in the central compliance part of this court, an order was made which directed the parties to comply with all outstanding discovery requests within twenty days and for depositions of the plaintiff and defendant to be held on or before February 1, 2009.

Plaintiff alleges that he has not received a response to his discovery requests and depositions have not yet been conducted. Defendant, by way of her attorney's affirmation in opposition, does not dispute that plaintiff's deposition has not been held. However, she advises that she served a response to plaintiff's demand for discovery on May 5, 2009. Defendant does not offer any explanation for the failure to be deposed and for the delay in responding to plaintiff's demand.

This court, in order to properly assess how to handle defendant's failure to comply with disclosure, must consider all relevant allegations of fact contained in the motion papers. Plaintiff alleges that on or about January 15, 2009, his attorney called defendant's attorney and left a message requesting a return telephone call in order to schedule depositions. On that same day plaintiff's attorney followed the telephone message with a request for the same in writing which is annexed as exhibit J. On January 22, 2009, plaintiff again telephoned defendant's attorney in order to discuss scheduling of depositions of the parties and followed this call up with a second written request. [*4]

The defendant has not yet been deposed and did not respond to plaintiff's two telephone calls and letters. Plaintiff contends that this constitutes willful, deliberate, and contumacious conduct. However, the defendant is eighty three years old, has been residing in the first floor of the subject property since at least 2002 and is being sued by her son to force a sale of her home.

In light of these facts, this court declines at this time to strike defendant's answer. However, as CPLR § 3126 authorizes "such orders... as are just", this court "is not restricted to the illustrative sanctions contained in the three numbered paragraphs [of CPLR § 3126]." (See, David D. Siegel, New York Practice Fourth Edition, § 367 Sanctions for Disclosure). In consideration of the undisputed fact that defendant has not complied with two discovery orders, it would be appropriate to issue a conditional order requiring that all depositions and discovery be completed within thirty (30) days of the issuance of the order or defendant's answer will be stricken and her counterclaims will be dismissed.

Plaintiff also seeks partial summary judgment on the third cause of action contained within his complaint for partition and sale. On a motion for summary judgment, the movant must establish his or her cause of action or defense sufficient to warrant a court to direct judgment in his or her favor as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). If the movant meets this burden, the party opposing the motion must then produce proof in admissible form sufficient to necessitate a trial as to material issues of fact (Laecca v. New York University, 7 AD3d 415 [1st Dept., 2004]).

Furthermore, to grant a motion for summary judgment, it must clearly appear that no material issue of fact is presented. The burden upon the court when deciding this type of motion is not to resolve issues of fact or credibility, but rather to determine whether indeed any such issue of fact exist (Barr v. County of Albany, 50 NY2d 247 [1980] ).

RPAPL § 901(1) sets forth who may maintain a partition action and provides: "A person holding and in possession of real property as joint tenant or tenant in common, in which he has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners."

One who holds an interest in real property as a tenant in common may maintain an action for partition of the property, and for sale if it appears that partition cannot be made without great prejudice to the owner (Picirillo v. Freidman, 244 AD2d 469 [2nd Dept., 1997]). Partition is not an absolute right of a tenant in common, but one which necessarily depends on the equities involved (Stressler v. Stressler, 193 AD2d 728 [2nd Dept.,1993]). Thus, partition may be precluded by the equities presented in a given case (Ferguson v. McLoughlin, 184 AD2d 294[1st Dept.,1992] ). The right to partition is absolute in the absence of countervailing conditions, and therefore, such issues as the [*5]interest of the parties and whether partition may be had without great prejudice should first be determined (Bentley v. Dox, 12 AD3d 1187 [4th Dept.,2004] ). Partition, although statutory, is equitable in nature and the court may compel the parties to do equity between themselves when adjusting the distribution of the proceeds of the sale (Freigang v. Freigang, 256 AD2d 539 [2nd Dept. 1998]).

Plaintiff has established the elements required for eligibility to maintain an action for partition by reference to the deed annexed as Exhibit A to his complaint which clearly shows that he and defendant own the subject premises in fee simple as tenants in common. Defendant's fourth affirmative defense, that "plaintiff's action must be dismissed as he lacks standing to commence this proceeding as he is not in possession of the property", is an erroneous interpretation of the law (See, Donlon v. Diamico, 33 AD3d 841 [2nd Dept. 2006]).

Plaintiff , however, is not seeking partition, but rather a sale of the subject premises. In order to succeed on his motion for partial summary judgment he must further establish that a partition cannot be made "without great prejudice to the owners" (See, RPAPL § 901[1]). Plaintiff only evidence on this issue was stated in the third paragraph of his affidavit which stated the following: "The subject premises is contains [sic] three (3) apartments and is so situated that division or partition among parties entitled thereto according to their respective rights and interests cannot be had without great prejudice to the owners thereof." It is noted that in the third paragraph of plaintiff's verified complaint he describes the subject property as a four family brick dwelling.

Plaintiff's motion papers do not present any explanation for why the subject premises might be so situated that a partition cannot be made without great prejudice to the owners. Furthermore, as plaintiff appears to contradict himself in the descriptions of the subject property, this court has no solid basis upon which to arrive at any understanding of its conduciveness or lack thereof to partition. Therefore, plaintiff has not met his burden for an order directing a sale of the subject property. It is well settled that "[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Cox v. Kingsboro Med. Group, 214 AD2d 150 [2nd Dept., 1995]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]).

The court is also mindful of the defendant's advanced age and the fact that the subject property has been her home since 2002. Had the plaintiff met his burden, the court would be inclined to very carefully examine the equities of ordering a partition and sale that would result in the removal of a woman in her eighties from her home.It is noted that defendant opposes the partial summary judgment motion on the grounds that there is outstanding pretrial discovery on this matter and that issues of fact precluding summary judgment exist. The defendant is apparently relying on CPLR § 3212(f) which [*6]states, "Should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion..."

"The main burden on the opposing party here is to convince the court in the opposing affidavits that facts may exist' whereby to defeat the motion... The court should also be shown the sources through which the opposing party believes the needed evidence can be secured" (See, David D. Siegel, McKinney's Consolidated Laws of New York Annotated, C3211:49 as referenced byC3212:33). Defendant's counsel has no personal knowledge of the underlying transactions in the pleadings and therefore cannot explain what essential facts may exist to oppose the motion (See, Dempaire v. City of New York, 61 AD3d 877 [2ND Dept., 2009]); see also, Boadnaraine v. City of New York, 68 AD3d 1032 [2ND Dept., 2009]). The affirmation of defendant's counsel is therefore, insufficient to make the showing required by CPLR § 3212(f).

In light of the foregoing, plaintiff's requests to schedule an inquest to determine the rights of the parties in the subject property is premature.

Plaintiff has also requested that the court appoint him as temporary receiver of the subject property pursuant to CPLR § 6401. CPLR § 6401 sets forth the basis for the appointment of a temporary receiver and provides as follows. "Upon motion of a person having an apparent interest in property which is the subject of an action in the supreme or a county court, a temporary receiver of the property may be appointed, before or after service of summons and at any time prior to judgment, or during the pendency of an appeal, where there is danger that the property will be removed from the state, or lost, materially injured or destroyed".

Nothing in the plaintiff's moving papers demonstrates that the subject property is in any danger of being removed from the state, or lost, or materially injured or destroyed. There is, therefore, no basis to appoint a temporary receiver in this action.

Accordingly, it is ordered that all discovery and examinations before trial be completed within 30 days of notice of entry of this order. If the defendant fails to comply with this order the answer will be stricken and the counterclaims will be dismissed.

Plaintiff's motion for partial summary judgment ordering a sale of the subject property is denied without prejudice.

Plaintiff's motion for an inquest to determine the respective interests of the parties in the subject property is denied without prejudice.

Plaintiff's motion for an order appointing him as temporary receiver of the subject property is denied.

The foregoing constitutes the decision and order of this court.

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