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Apladenaki v. Greenpoint Mortgage Funding, Inc.
Citations: 117 A.D.3d 976; 986 N.Y.S.2d 589
Court: Appellate Division of the Supreme Court of the State of New York; May 28, 2014; New York; State Appellate Court
In the case concerning the plaintiff's appeal to set aside a mortgage, the Supreme Court of Queens County granted the defendants Greenpoint Mortgage Funding, Inc. and Mortgage Electronic Registration Systems, Inc. (MERS) a motion to dismiss the complaint based on the plaintiff's failure to comply with court-ordered disclosure and for want of prosecution. The court affirmed this order, emphasizing that the decision to strike a pleading due to non-compliance with discovery demands rests within the trial court's discretion. The court noted that the severe measure of striking a pleading under CPLR 3126 is only justified when a party's failure to comply is clearly willful and contumacious. Such conduct can be inferred from repeated failures to comply with discovery requests without adequate justification. In this instance, the plaintiff's repeated absences from depositions, coupled with a lack of reasonable excuses, indicated willful non-compliance. Furthermore, the court found that the plaintiff did not respond adequately to a 90-day notice to resume prosecution of the case, failing to file a note of issue or request an extension. As a result, the plaintiff was required to provide a justifiable excuse for this delay and demonstrate a meritorious claim, which she did not do. The remaining arguments presented by the plaintiff were deemed without merit. The decision was concurred by Judges Mastro, Roman, Hinds-Radix, and LaSalle.