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NORMAN GOLDSTEIN, as Executor of ELLSWORTH GOLDSTEIN, Deceased, Appellant, v. CIBC WORLD MARKETS CORP. et al., Respondents, et al., Defendant.

While a pleading ordinarily should not be stricken absent a motion on notice, any concerns in that regard are dispelled by the repeated warnings the court gave plaintiff's attorney at numerous compliance conferences that continued noncompliance could result in a dismissal, and the opportunity plaintiff had to challenge the dismissal in a subsequent motion made on notice from which he now appeals ( see Bear, Stearns Co., Inc. v. Enviropower, LLC, 21 AD3d 855). Plaintiff's year-long pattern of noncompliance with the court's repeated compliance conference orders gave rise to an inference of willful and contumacious conduct ( see Merchants T F Inc. v. Kase Druker, 19 AD3d 134). The record does not bear out plaintiff's assertion that by the time of the dismissal, he had provided the disclosure sought. Nor does it bear out plaintiff's assertion that the noncompliance was due to his attorney's illness. We have considered and rejected plaintiff's other arguments.

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GOLDSTEIN v. CIBC WORLD MARKETS CORP
(Jun 13, 2006)