Opinion
2013-06063, 2013-08829
06-10-2015
Barbara PIATEK, et al., plaintiffs, v. OAK DRIVE ENTERPRISES, INC., et al., defendants, St. Andrews Ukrainian Orthodox Church, defendant third-party plaintiff-respondent, Saeed Ainechi, et al., defendants second third-party plaintiffs-respondents, Alfred Mierzejewski Architect, P.C., et al., defendants third-party defendants; Vojtek Construction, Inc., third-party defendant/second third-party defendant-appellant.
Cullen and Dykman, New York, N.Y. (Frank J. Lourenso of counsel), for third-party defendant/second third-party defendant-appellant. Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (Jennifer B. Ettenger of counsel), for defendant third-party plaintiff-respondent (no brief filed).
Cullen and Dykman, New York, N.Y. (Frank J. Lourenso of counsel), for third-party defendant/second third-party defendant-appellant.
Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (Jennifer B. Ettenger of counsel), for defendant third-party plaintiff-respondent (no brief filed).
MARK C. DILLON, J.P., RUTH C. BALKIN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.
Opinion
In an action, inter alia, to recover damages for wrongful death, the third-party defendant/second third-party defendant, Vojtek Construction, Inc., appeals, as limited by its brief, from (1) so much of an order of the Supreme Court, Queens County (Rosengarten, J.), dated April 3, 2013, as granted that branch of the motion of the defendant third-party plaintiff, St. Andrews Ukrainian Orthodox Church, joined in by the defendants second third-party plaintiffs, Saeed Ainechi and A&A Consulting Engineer, Inc., which was pursuant to CPLR 3126 for the imposition of sanctions to the extent of precluding it “from offering any testimony or evidence at trial with regard to liability” in the event that it failed to produce a certain witness for deposition within 45 days of the order, and (2) so much of an order of the same court dated June 20, 2013, as, upon, in effect, reargument, adhered to the determination in the order dated April 3, 2013.
ORDERED that the appeal from the order dated April 3, 2013, is dismissed, as that order was superseded by the order dated June 20, 2013, made upon reargument; and it is further,
ORDERED that the order dated June 20, 2013, is affirmed insofar as appealed from, without costs or disbursements.
In an order dated April 3, 2013, the Supreme Court granted that branch of the motion of the defendant third-party plaintiff, St. Andrews Ukrainian Orthodox Church, joined in by the defendants second third-party plaintiffs, Saeed Ainechi and A&A Consulting Engineer, Inc., which was pursuant to CPLR 3126 for the imposition of sanctions upon the third-party defendant/second third-party defendant, Vojtek Construction, Inc. (hereinafter Vojtek), to the extent of precluding Vojtek “from offering any testimony or evidence at trial with regard to liability” in the event that it failed to produce a certain witness for deposition within 45 days of the order. In effect, upon reargument, the Supreme Court adhered to that determination, and explained that the phrase “any testimony or evidence” meant all testimony and evidence, including testimony or evidence that might be adduced from a party other than Vojtek. In light of Vojtek's failure, over an extended period of time, to comply with multiple so-ordered stipulations directing it to produce a witness for a deposition, the Supreme Court properly concluded that Vojtek engaged in willful and contumacious conduct and, in effect, upon reargument, providently exercised its discretion in precluding Vojtek “from producing any testimony or evidence in the liability portion of the trial even if said testimony or evidence is to be adduced from a party other than Vojtek” (see Yong Soon Oh v. Hua Jin, 124 A.D.3d 639, 641, 1 N.Y.S.3d 307 ; Stone v. Zinoukhova, 119 A.D.3d 928, 930, 990 N.Y.S.2d 567 ).