MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motion of fourth-party plaintiff for leave to serve a second amended fourth-party complaint to the extent that fourth-party plaintiff sought to add a cause of action alleging that fourth-party defendants breached their contractual obligation to procure insurance coverage for the benefit of fourth-party plaintiff and as modified the order is affirmed without costs.
Memorandum:
Supreme Court erred in granting the motion of fourth-party plaintiff for leave to serve a second amended fourth-party complaint to the extent that fourth-party plaintiff sought to add a cause of action alleging that fourth-party defendants breached their contractual obligation to procure insurance coverage for the benefit of fourth-party plaintiff. That cause of action, which accrued at the time of the alleged breach, is time-barred ( see Polat v Fifty CPW Tenants Corp., 249 A.D.2d 163, 163-164; Vanarthros v St. Francis Hosp., 234 A.D.2d 450, 451; see generally Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402). The court properly granted the motion, however, to the extent that fourth-party plaintiff sought to add a cause of action alleging that fourth-party defendants breached their agreement to indemnify fourth-party plaintiff with respect to the claims asserted against it in both the main action and the third-party action. That cause of action, which did not accrue until fourth-party plaintiff made payment on those claims, is timely ( see Fisher v. Preston, 251 A.D.2d 843, 844; Polat, 249 A.D.2d at 164). Finally, the court erred in granting the motion of fourth-party plaintiff to strike the answer of fourth-party defendants and in granting judgment in favor of fourth-party plaintiff based upon fourth-party defendants' delay in complying with discovery demands. "[T]he harsh remedy of striking an answer should be granted only where it is conclusively shown that the discovery default was deliberate or contumacious" ( Gadley v. U.S. Sugar Co., 259 A.D.2d 1041, 1042; see Brothers v. Bunkoff Gen. Contrs., 296 A.D.2d 764, 765). In our view, fourth-party plaintiff failed to make that conclusive showing.
In appeal No. 1, we therefore modify the order by denying the motion of fourth-party plaintiff for leave to serve a second amended fourth-party complaint to the extent that fourth-party plaintiff sought to add a cause of action alleging that fourth-party defendants breached their contractual obligation to procure insurance coverage for the benefit of fourth-party plaintiff. In appeal No. 2, we reverse the order, deny the motion of fourth-party plaintiff to strike fourth-party defendants' answer to the second amended fourth-party complaint, reinstate that answer and vacate the award of judgment in favor of fourth-party plaintiff. In view of our determination, the judgment in appeal No. 3 must be vacated.