Opinion
2017–09206 2017–09207 Index No. 14333/11
12-19-2018
Thomas J. AIKEN, Plaintiff, v. Rosemary WILTSHIRE, Respondent, v. Patrick Liotta, Appellant (And a Third-Party Action).
Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York, N.Y. (Vanessa M. Corchia of counsel), for appellant. Subin & Associates, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac and Michael H. Zhu ], of counsel), for respondent.
Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York, N.Y. (Vanessa M. Corchia of counsel), for appellant.
Subin & Associates, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac and Michael H. Zhu ], of counsel), for respondent.
MARK C. DILLON, J.P., SHERI S. ROMAN, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
In a consolidated action, inter alia, to recover damages for personal injuries, the defendant appeals from (1) an order of the Supreme Court, Kings County (Lauren Baily–Schiffman, J.), dated March 4, 2017, and (2) an order of the same court dated May 25, 2017. The order dated March 4, 2017, denied, as premature and without prejudice, that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Rosemary Wiltshire. The order dated May 25, 2017, insofar as appealed from, denied the defendant's motion to enforce certain orders of preclusion against the plaintiff Rosemary Wiltshire pursuant to CPLR 3126 and, thereupon, for summary judgment dismissing the complaint insofar as asserted by that plaintiff.
ORDERED that the appeal from the order dated March 4, 2017, is dismissed, as that order was superseded by the order dated May 25, 2017; and it is further,
ORDERED that the order dated May 25, 2017, is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff Rosemary Wiltshire.
The underlying facts of these appeals are summarized in the companion appeal decided herewith (see Aiken v. Liotta, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2018 WL 6627094 [Appellate Division Docket No. 2016–00784] ).
We agree with the Supreme Court's denial of the defendant's motion to enforce certain orders of preclusion against the plaintiff Rosemary Wiltshire pursuant to CPLR 3126 and, thereupon, for summary judgment dismissing the complaint insofar as asserted by that plaintiff. Despite Wiltshire's delays, she substantially complied with the relevant discovery demands and orders, and the defendant failed to demonstrate that the delays were the product of willful and contumacious conduct (see Brannigan v. Christie Overhead Door, 144 A.D.3d 959, 960, 43 N.Y.S.3d 365 ; McDermott v. Bahnatka, 83 A.D.3d 1014, 1015, 921 N.Y.S.2d 574 ; LOP Dev., LLC v. ZHL Group, Inc., 78 A.D.3d 1020, 1020, 911 N.Y.S.2d 637 ; Jenkins v. Proto Prop. Servs., LLC, 54 A.D.3d 726, 864 N.Y.S.2d 79 ; Zouev v. City of New York, 32 A.D.3d 850, 851, 821 N.Y.S.2d 620 ; Passarelli v. National Bank of Westchester, 81 A.D.2d 635, 636, 438 N.Y.S.2d 135 ).
DILLON, J.P., ROMAN, MILLER and DUFFY, JJ., concur.