Opinion
12-08-2016
Robin B. VACA, Plaintiff–Appellant, v. VILLAGE VIEW HOUSING CORPORATION, et al., Defendants–Respondents–Appellants. [And a Third–Party Action].
Weiss & Rosenbloom, P.C., New York (Erik L. Gray of counsel), for appellant. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Joseph A.H. McGovern of counsel), for Village View Housing Corporation and Metro Management & Development, Inc., respondents-appellants. Law Office of James J. Toomey, New York (Eric P. Tosca of counsel), for Fowler Equipment Company, respondent-appellant.
Weiss & Rosenbloom, P.C., New York (Erik L. Gray of counsel), for appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Joseph A.H. McGovern of counsel), for Village View Housing Corporation and Metro Management & Development, Inc., respondents-appellants.
Law Office of James J. Toomey, New York (Eric P. Tosca of counsel), for Fowler Equipment Company, respondent-appellant.
MAZZARELLI, J.P., FRIEDMAN, ACOSTA, ANDRIAS, MOSKOWITZ, JJ.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered September 16, 2015, which granted plaintiff's motion to strike defendants' answers, and directed that the answers not be reinstated unless defendants respond to plaintiff's discovery demands, unanimously modified, on the facts, to grant plaintiff's motion unless, within 45 days after notice of entry of this order, defendants provide responsive discovery or an affidavit stating that a search has been conducted and the documents do not exist, and, as so modified, affirmed, without costs.
The motion court providently exercised its discretion in issuing a conditional order striking the answer after defendants failed to comply with numerous orders directing them to provide discovery or an affidavit stating that a search had been conducted and the documents did not exist (see Jackson v. City of New York, 185 A.D.2d 768, 586 N.Y.S.2d 952 [1st Dept.1992] ). An order striking the answer without giving defendants another opportunity to "cure" their discovery deficiencies would have been inappropriate in light of plaintiff's own discovery deficiencies and failure to provide a proper good-faith affirmation in compliance with 22 NYCRR 202.7 (see DaimlerChrysler Ins. Co. v. Seck, 82 A.D.3d 581, 919 N.Y.S.2d 20 [1st Dept.2011] ; see also Jackson v. Hunter Roberts Constr. Group, L.L.C., 139 A.D.3d 429, 430, 29 N.Y.S.3d 170 [1st Dept.2016] ). However, the conditional order should provide that the motion is granted " ‘unless' within a specified time the resisting party submits to the disclosure,’ " and we modify solely to that effect (Gibbs v. St. Barnabus Hosp., 16 N.Y.3d 74, 79, 917 N.Y.S.2d 68, 942 N.E.2d 277 [2010] [CPLR 3126 ]; see also Keller v. Merchant Capital Portfolios, LLC, 103 A.D.3d 532, 962 N.Y.S.2d 48 [1st Dept.2013] ).
We have considered the parties' other arguments for affirmative relief and find them unavailing.