Tony's Ornamental Iron Works, Inc. v. National Building & Restoration Corp.

Judgment unanimously reversed in the exercise of discretion with costs to plaintiff, motion denied in part, answer and counterclaim reinstated and judgment ordered imposing penalty in accordance with the following Memorandum: National Building & Restoration Corp. (defendant) appeals from an order and judgment striking its answer and counterclaim and granting plaintiff judgment in the amount of $178,136.36, as a penalty for defendant’s failure to comply with an order compelling discovery (see, CPLR 3126 [3]). Although characterized as a default judgment, the judgment granting relief under CPLR 3126 (3) is directly appealable because the relief sought thereunder was obtained on notice (see, Banner Serv. Corp. v Hall, 185 AD2d 613). Defendant moved by order to show cause to vacate the judgment pursuant to CPLR 5015. Because defendant did not appeal from the order denying its motion to vacate, the papers submitted by defendant on that motion are not before us and we do not consider them (see generally, 10 Carmody-Wait 2d, NY Prac § 70:316). A court may impose various penalties for a party’s willful failure to comply with an order compelling discovery, the harshest of which is "dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party” (CPLR 3126 [3]; see, Corsini v U-Haul Intl., 212 AD2d 288, 291, lv dismissed in part and denied in part 87 NY2d 964; see generally, Zletz v Wetanson, 67 NY2d 711). In view of defendant’s conduct during the course of discovery in this action, the court did not abuse its discretion in imposing a penalty pursuant to CPLR 3126. We conclude, however, in the exercise of our discretion that the penalty imposed is too harsh (see, Matter of Attorney-General of State of N. Y. v Katz, 55 NY2d 1015, 1017; Kahn v Kahn, 43 NY2d 203, 210-211; Kover v Kover, 29 NY2d 408, 415, n 2). We therefore reverse the judgment, deny in part plaintiff’s motion, reinstate defendant’s answer and counterclaim and order that judgment be entered imposing a penalty of $5,000, plus costs and attorney’s fees, payable to plaintiff by the attorney who represented defendant prior to and at the time the order compelling discovery was obtained. (Appeal from Judg 910 ment of Supreme Court, Oneida County, Grow, J.—Penalty.) Present—Denman, P. J., Green, Balio, Boehm and Fallon, JJ.