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Household Finance Realty Corp. v. Robinson

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


December 30, 2009

HOUSEHOLD FINANCE REALTY CORPORATION OF NEW YORK, APPELLANT-RESPONDENT,
v.
DAVID W. ROBINSON, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF SANDRA F. ROBINSON, DECEASED, RESPONDENT-APPELLANT.

Appeal and cross appeal from a judgment of the Supreme Court, Monroe County (Evelyn Frazee, J.), entered September 9, 2008. The judgment granted plaintiff's motion to dismiss the counterclaims and granted defendant's motion to dismiss the complaint.

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

As corrected through Wednesday, February 10, 2010

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum

We affirm the judgment insofar as it granted plaintiff's motion to dismiss the counterclaims for reasons stated in the decision at Supreme Court dated July 14, 2008. We also affirm the judgment insofar as it granted defendant's motion to dismiss the complaint as a sanction pursuant to CPLR 3126. Defendant met his initial burden by establishing that plaintiff engaged in willful, contumacious or bad faith conduct by failing to comply with a court order concerning outstanding discovery demands, thereby shifting the burden to plaintiff to offer a reasonable excuse for its noncompliance, and plaintiff failed to meet that burden (see Hill v Oberoi, 13 AD3d 1095 [2004]).

Present---Hurlbutt, J.P., Peradotto, Carni, Pine and Gorski, JJ.

20091230

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