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B.E.N. Trading Corp. v. Shirley Import

December 22, 2009

B.E.N. TRADING CORP., PLAINTIFF,
v.
SHIRLEY IMPORT, INC., ET AL., DEFENDANTS/THIRD-PARTY PLAINTIFFS-APPELLANTS, BINYAMIN ABADI, ET AL., THIRD-PARTY DEFENDANTS-RESPONDENTS.



Judgment, Supreme Court, New York County (Richard B. Lowe III, J.), entered July 23, 2008, awarding plaintiff the principal sum of $250,000 against defendants, dismissing the third-party action and awarding third-party defendants nominal costs and disbursements against defendants/third-party plaintiffs, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered July 17, 2008, which granted plaintiff's motion to strike defendants' answer, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

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.

Sweeny, J.P., Catterson, Renwick, Freedman, Abdus-Salaam, JJ.

602707/05 & 590872/05

Defendants' failure to offer a reasonable excuse for their noncompliance with discovery demands, court orders and the court's rules gives rise to an inference of willful and contumacious conduct (Siegman v Rosen, 270 AD2d 14, 15 [2000]). The striking of their answer and third-party complaint was a proper exercise of judicial discretion in light of such conduct (CPLR 3126; see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091222

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