Meraj v. Walgreens Co.

Summary

The Appellate Division, Second Department affirmed an order restoring a property-damage action to the active calendar and denying defendants' cross-motions to strike the complaint for discovery delays. The court held that restoration was automatic because the action was in pre-note-of-issue status, no valid 90-day notice or dismissal order had been issued, and the defendants failed to satisfy good-faith consultation requirements or show willful and contumacious discovery conduct.

Holdings

1. An action in pre-note-of-issue status is not subject to the marking-off procedures of CPLR 3404, and where no valid 90-day notice under CPLR 3216 and no dismissal order under 22 NYCRR 202.27 exist, restoration to the active calendar is automatic.
2. A motion relating to disclosure must include an affirmation demonstrating compliance with the good-faith-conference requirements of 22 NYCRR 202.7; failure to provide a compliant affirmation warrants denial of the motion.
3. Striking a pleading under CPLR 3126 is a drastic remedy that is inappropriate absent a clear showing that the failure to comply with discovery demands was willful and contumacious.

Questions Presented

1. Whether the action should be restored to the active calendar when it was in pre-note-of-issue status and had been marked disposed without a valid 90-day notice or dismissal order.
2. Whether the defendants' and third-party defendant's CPLR 3126 cross-motions to strike the complaint were properly denied for failure to comply with the good-faith-conference requirement.
3. Whether the record established willful and contumacious discovery conduct warranting the drastic sanction of striking the complaint.

Disposition

affirmed