| Household Fin. Realty Corp. of N.Y. v Robinson |
| 2009 NY Slip Op 09812 [68 AD3d 1724] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| 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. |
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Chamberlain D'Amanda Oppenheimer & Greenfield LLP, Rochester (K. Wade Eaton of counsel), for defendant-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.
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.