Opinion
01-12-2016
Jerzy DABROWSKI, et al., Plaintiffs–Respondents, v. ABAX INCORPORATED, etc., et al., Defendants–Appellants, John Doe Bonding Companies 1–20, Defendants.
Milman Labuda Law Group PLLC, Lake Success (Joseph M. Labuda of counsel), for ABAX Incorporated, appellant. Goetz Fitzpatrick LLP, New York (Michael Fleishman of counsel), for John Bleckman and Edward Monaco, appellants. Virginia & Ambinder, LLP, New York (LaDonna Lusher of counsel), for respondents.
Milman Labuda Law Group PLLC, Lake Success (Joseph M. Labuda of counsel), for ABAX Incorporated, appellant.
Goetz Fitzpatrick LLP, New York (Michael Fleishman of counsel), for John Bleckman and Edward Monaco, appellants.
Virginia & Ambinder, LLP, New York (LaDonna Lusher of counsel), for respondents.
Order, Supreme Court, New York County (George J. Silver, J.), entered September 4, 2014, which denied defendants-appellants' motion for discovery sanctions against four class members, unanimously affirmed, without costs.
The motion court providently exercised its discretion in denying defendants' motion to dismiss the four class members from the class, as they did not show that the four class members' failure to appear for a court-ordered deposition was willfull, contumacious or in bad faith (see CPLR 3126 ; Henderson–Jones v. City of New York, 87 A.D.3d 498, 504, 928 N.Y.S.2d 536 [1st Dept.2011] ). There is no evidence of repeated failures to appear for scheduled depositions or to comply with court-ordered discovery (see Tsai v. Hernandez, 284 A.D.2d 116, 117, 725 N.Y.S.2d 340 [1st Dept. 2001] ). Plaintiffs' counsel stated that her mailings to the four class members were returned to her and that three of the four class members never contacted her (see Blake v. Mamadou, 281 A.D.2d 301, 722 N.Y.S.2d 158 [1st Dept.2001] ). Counsel further stated that one class member notified her that he could not appear for his scheduled deposition because of personal reasons. Under the circumstances, the motion court providently exercised its discretion in declining to impose a monetary sanction.
RENWICK, J.P., ANDRIAS, SAXE, MOSKOWITZ, JJ., concur.