Opinion
2012-07-25
Ashton PIERRE, et al., respondents, v. 100 CORP., et al., appellants, et al., defendants.
Offeck & Heinze, LLP, New York, N.Y. (Mark F. Heinze of counsel), for appellants. Vivian M. Williams & Associates, P.C., New York, N.Y., for respondents.
Offeck & Heinze, LLP, New York, N.Y. (Mark F. Heinze of counsel), for appellants. Vivian M. Williams & Associates, P.C., New York, N.Y., for respondents.
RUTH C. BALKIN, J.P., RANDALL T. ENG, JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, JJ.
In an action, inter alia, to recover damages for injury to property, the defendants 100 Corp., 201 Builders Corp., and Menashe Shlomo appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Ruchelsman, J.), dated May 4, 2010, as granted that branch of the plaintiffs' motion which was pursuant to CPLR 3126 to strike their answer.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiffs' motion which was pursuant to CPLR 3126 to strike the appellants' answer is denied.
The Supreme Court should not have granted that branch of the plaintiffs' motion which was pursuant to CPLR 3126 to strike the answer of the defendants 100 Corp., 201 Builders Corp., and Menashe Shlomo (hereinafter collectively the appellants). Contrary to the Supreme Court's determination, the record demonstrates that the appellants complied with a conditional order of preclusion dated July 15, 2009, by serving a bill of particulars and responsive documents, and by producing the appellant Menashe Shlomo, who is an officer of both corporate appellants, for a deposition. Although the plaintiffs claimed in support of their motion that the appellants had failed to provide documents in compliance with the conditional order of preclusion, they did not identify any specific document that had not yet been provided. Furthermore, the appellants did not violate the conditional order of preclusion by failing to produce the defendants Tomer Antebi and Gad Ashori for depositions. The plaintiffs' complaint does not allege that Antebi and Ashori were employed by the appellants, and the appellants' answer was not served on behalf of these individuals, who have never appeared in this action. Under these circumstances, there is no basis for holding the appellants responsible for producing Antebi and Ashori for depositions. Since the plaintiffs failed to show that the appellants violated the conditional order of preclusion or otherwise willfully and contumaciously failed to comply with discovery, the drastic sanction of striking the appellants' answer was unwarranted ( see Caval v. City of New York, 89 A.D.3d 885, 932 N.Y.S.2d 723;McGroarty v. Long Is. Coll. Hosp., 37 A.D.3d 431, 829 N.Y.S.2d 615;Bivona v. Trump Mar. Casino Hotel Resort, 11 A.D.3d 574, 575, 782 N.Y.S.2d 667;see also Chong v. Chaparro, 94 A.D.3d 800, 941 N.Y.S.2d 709;LOP Dev., LLC v. ZHL Group, Inc., 78 A.D.3d 1020, 911 N.Y.S.2d 637;Sullivan v. Nigro, 48 A.D.3d 454, 849 N.Y.S.2d 786;Morano v. Westchester Paving & Sealing Corp., 7 A.D.3d 495, 496, 776 N.Y.S.2d 83).