Smith v Tormos

Supreme Court, Appellate Term, Second Department, 9th And 10th Judicial Districts

Decided on March 19, 2026

2024-1083 S C

Present: : Joseph R. Conway, J.P., Maria S. Vazquez-Doles, Maureen T. Liccione, JJ

The Law Offices of Ari Mor, Esq., P.C. (Ari Mor of counsel), for appellant.

The Steiner Law Firm, PLLC (Norman Steiner of counsel), for respondent.

Appeal from an order of the Suffolk County Court (David A. Morris, J.), dated August 19, 2024. The order, insofar as appealed from as limited by the brief, granted plaintiff's motion to strike defendant's answer and for the entry of a default judgment, and denied the branch of defendant's cross-motion seeking leave to amend the answer.

ORDERED that the order, insofar as appealed from, is reversed, without costs, plaintiff's motion to strike defendant's answer and for the entry of a default judgment is denied, the branch of defendant's cross-motion seeking leave to amend the answer is granted, and the proposed amended answer is deemed timely filed and served.

Plaintiff commenced this action in Supreme Court, Suffolk County, in September 2021 seeking to recover damages from defendant, her tenant, including unpaid rent. Defendant, pro se, answered the complaint in October 2021, and plaintiff filed an amended complaint in November 2021. Defendant filed an answer to the amended complaint in December 2021. On August 11, 2022, the Supreme Court entered a Preliminary Conference Order requiring "[d]emands for discovery and inspection" to be served on or before October 7, 2022. The order directed that "[t]he items sought shall be produced to the extent not objected to, and objections, if any, shall be stated [*2]on or before" November 4, 2022. In September 2022, the action was transferred to the Suffolk County Court pursuant to CPLR 325 (d).

By notice of motion dated March 12, 2023, plaintiff moved, pursuant to CPLR 3215 and 3216, to strike defendant's answer, and for the entry of a default judgment. In support of the motion, plaintiff alleged that, on October 7, 2022, she had served discovery demands on defendant seeking the production of certain documents by November 4, 2022, and that defendant had failed to comply with her demands. Plaintiff also represented that defendant had failed to appear at a discovery conference in January 2023. Defendant opposed the motion, alleging that she had timely complied with plaintiff's demands, and attached certain documents to her opposition papers. The Suffolk County Court did not decide this motion, and plaintiff filed another motion in June 2023 seeking the same relief, in which she reiterated her contentions from her previous motion, and claimed that defendant had also failed to attend a discovery conference on June 8, 2023. Thereafter, defendant retained counsel, who opposed the second motion and filed a cross-motion in October 2023 seeking, among other things, leave to amend defendant's answer. As limited by the brief, defendant appeals from so much of an order of the County Court (David A. Morris, J.) dated August 19, 2024 as granted plaintiff's motion to strike the answer and for the entry of a default judgment, and as denied the branch of defendant's cross-motion seeking leave to amend the answer.

Upon a review of the record, we find that the County Court improvidently exercised its discretion in "imposing the drastic remedy of striking" defendant's answer, as plaintiff failed to demonstrate that defendant willfully and contumaciously failed to comply with discovery demands, and to attend court conferences (255 Butler Assoc., LLC v 255 Butler, LLC, 208 AD3d 831, 834 [2022] [internal quotation marks omitted]; see Kopelevich & Feldsherova, P.C. v Geller Law Group, P.C., 191 AD3d 853, 854 [2021]; cf. Schiller v Sunharbor Acquisition I, LLC, 152 AD3d 812, 813-814 [2017]). While defendant did not submit any proof that she timely served responses to the demands, the documents submitted in her opposition papers were responsive to some of plaintiff's discovery demands (see Mironer v City of New York, 79 AD3d 1106, 1108 [2010]; Pascarelli v City of New York, 16 AD3d 472, 472-473 [2005]). Further, defendant requested an adjournment of the June 8, 2023 discovery conference due to a medical appointment, and therefore, her failure to attend that conference cannot be considered willful and contumacious (see Read v Dickson, 150 AD2d 543, 544 [1989]). Consequently, plaintiff's motion to strike defendant's answer and for the entry of a default judgment should have been denied.

The County Court also improvidently exercised its discretion in denying the branch of defendant's cross-motion seeking leave to amend the answer, as plaintiff failed to demonstrate that any prejudice would result from permitting defendant to amend the answer, and the proposed amended answer was not "palpably insufficient to state a . . . defense, or. . . patently devoid of merit" (Katz v Castlepoint Ins. Co., 121 AD3d 948, 950 [2014] [internal quotation marks omitted]; see Lucido v Mancuso, 49 AD3d 220, 229 [2008]).

Accordingly, the order, insofar as appealed from, is reversed, plaintiff's motion to strike defendant's answer and for the entry of a default judgment is denied, the branch of defendant's cross-m[*3]otion seeking leave to amend the answer is granted, and the proposed amended answer is deemed timely filed and served.

CONWAY, J.P., VAZQUEZ-DOLES and LICCIONE, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: March 19, 2026