Yellowbook, Inc. v. Heller & Heller , 33 N.Y.S.3d 892 ( 2016 )

Yellowbook, Inc. v Heller & Heller (2016 NY Slip Op 05349)

Yellowbook, Inc. v Heller & Heller

2016 NY Slip Op 05349

Decided on July 5, 2016

Appellate Division, First Department

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

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 5, 2016
Sweeny, J.P., Acosta, Feinman, Kapnick, Kahn, JJ.

1670N 653498/11

[*1] Yellowbook, Inc., formerly known as Yellow Book Sales & Distribution Company, Inc., Plaintiff-Respondent,

v

Heller & Heller, et al., Defendants-Appellants.

Peter Toumbekis, Brooklyn, for appellants.

Concetta G. Spirio, Sayville, for respondent.

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered November 5, 2014, which, upon reargument, adhered to a prior determination granting plaintiff's motion to strike defendants' answer and enter judgment in plaintiff's favor, unanimously affirmed, with costs.

The motion court providently exercised its discretion in striking defendants' answer, including their remaining counterclaim, given their "willful and repeated failure to comply with court-ordered discovery" (Soto-Law v Law, 264 AD2d 695, 696 [1st Dept 1999]). After repeated discovery violations for which defendants were sanctioned, the individual defendant failed to appear for his deposition, which had already been rescheduled. Defendants' behavior, and their failure to offer a reasonable excuse for it, supported the motion court's finding of

willfulness (see Fish & Richardson, P.C. v Schindler, 75 AD3d 219, 221-222 [1st Dept 2010]; Kutner v Feiden, Dweck & Sladkus, 223 AD2d 488, 489 [1st Dept 1996], lv denied 88 NY2d 802 [1996]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 5, 2016

DEPUTY CLERK