T. Rotenberg

The plaintiff brought a motion for summary judgment seeking the dismissal of the defendant's counterclaim in a construction lien action.

The defendant had repeatedly failed to produce financial documentation relevant to its delay counterclaim, despite multiple requests and a court order, resulting in the adjournment of four scheduled trial dates.

The court found that the defendant's actions were deliberate and calculated to delay the trial on the merits.

Applying Rule 60.12 of the Rules of Civil Procedure, the court concluded that this was an exceptional case where striking the pleading was warranted to protect the administration of justice.

The defendant's counterclaim was dismissed.

The plaintiff demolition contractor registered a construction lien after abandoning the site due to the defendant developer's failure to pay a progress draw.

The dispute centered on whether the contract required crushing concrete to 3-inch minus or 3/4-inch minus, and whether the plaintiff was responsible for removing asphalt and imported materials.

The court found the defendant breached the contract by failing to pay the progress draw, the contract specified a 3-inch minus crush, and the lien was registered in time.

After accounting for payments and proven backcharges, the defendant was ordered to pay the plaintiff $81,271.93.