Casimir v Ann Bendick Realty (2011 NY Slip Op 50602(U))

Casimir v Ann Bendick Realty

2011 NY Slip Op 50602(U) [31 Misc 3d 132(A)]

Decided on April 5, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Andrise Valencia Casimir, Respondent,

against

Ann Bendick Realty, Defendant, -and- KONE, INC. Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered August 14, 2009. The order, insofar as appealed from as limited by the brief, denied the branch of defendant Kone, Inc.'s cross motion which sought to strike the complaint pursuant to CPLR 3126.

ORDERED that the order, insofar as appealed from, is reversed, without costs, the branch of defendant Kone Inc.'s cross motion which sought to strike the complaint is granted, and the complaint is dismissed.

In this personal injury action, plaintiff moved to quash a judicial subpoena that had been served upon her attorneys, and defendant Kone, Inc. cross-moved to, among other things, strike the complaint pursuant to CPLR 3126. Defendant Kone, Inc. appeals, as limited by its brief, from so much of the Civil Court's order as denied the branch of the cross motion seeking to strike the complaint pursuant to CPLR 3126.

While the drastic remedy of striking a pleading for failure to comply with discovery demands is inappropriate absent a clear showing that the failure was willful and contumacious (see Simpson v City of New York, 10 AD3d 601 [2004]; Morano v Westchester Paving & Sealing Corp., 7 AD3d 495 [2004]; 181 S. Franklin Assoc. v Y & R Assoc., 6 AD3d 594 [2004]; Traina v Taglienti, 6 AD3d 524 [2004]; Byrne v City of New York, 301 AD2d 489 [*2][2003]), a motion to strike a party's pleadings pursuant to CPLR 3126 may be granted because of a party's submission of false information during the course of discovery (see e.g. Garnett v Hudson Rent A Car, 258 AD2d 559 [1999]; 317 W. 87 Assoc. v Dannenberg, 159 AD2d 245 [1990]). In our opinion, this is one such case, since the documentary evidence submitted by defendant Kone, Inc. clearly demonstrates that plaintiff falsely testified during her deposition regarding her medical history and prior personal injury lawsuits. Accordingly, the Civil Court's order, insofar as
appealed from, is reversed, the branch of defendant Kone, Inc.'s cross motion to strike the complaint is granted and the complaint is dismissed.