Opinion
2013-01-24
Elvin MARTE, Plaintiff–Appellant, v. CITY OF NEW YORK, Defendant–Respondent. [And a Third–Party Action].
Paul G. Vesnaver, PLLC, Baldwin (Victor A. Carr of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Avshalom Yotam of counsel), for respondent.
Paul G. Vesnaver, PLLC, Baldwin (Victor A. Carr of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Avshalom Yotam of counsel), for respondent.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered August 8, 2011, which denied plaintiff's motion to strike defendant's answer pursuant to CPLR 3126, unanimously affirmed, without costs.
Discovery sanctions were inappropriate because plaintiff waived his right to challenge deficiencies in defendant's responses to discovery orders by filing a note of issue and certificate of readiness representing that all discovery had been completed and that there were no outstanding discovery requests ( see Rivera–Irby v. City of New York, 71 A.D.3d 482, 482, 896 N.Y.S.2d 337 [1st Dept. 2010]; Escourse v. City of New York, 27 A.D.3d 319, 812 N.Y.S.2d 478 [1st Dept. 2006] ).
In any event, denial of the motion to strike would not have constituted an abuse of discretion, given that the City ultimately complied with the order to produce the City employee a month after the court-ordered deadline ( see Nussbaum v. D'Amico, 29 A.D.3d 449, 814 N.Y.S.2d 523 [1st Dept. 2006] ), and the City's conduct during pre-note of issue discovery proceedings did not amount to willful and contumacious behavior ( see Glaser v. City of New York, 79 A.D.3d 600, 912 N.Y.S.2d 221 [1st Dept. 2010] ). The court properly considered the City's opposition papers, given that plaintiff has not shown prejudice by the late service, and had, in fact, submitted reply and supplemental reply affirmations ( see Prato v. Arzt, 79 A.D.3d 622, 912 N.Y.S.2d 881 [1st Dept. 2010] ).