Opinion
7183– 7184– 7185 Index 650631/15 Case 1314/18 1315/18 1316/18
10-02-2018
Case Brett BUTLER, et al., Plaintiffs–Respondents, v. KNIGHTS COLLISION EXPERTS, INC., et al., Defendants–Appellants.
Margolin & Pierce, LLP, New York (Errol F. Margolin of counsel), for appellants. Pedowitz & Meister, LLP, New York (Robert A. Meister of counsel), for respondents.
Margolin & Pierce, LLP, New York (Errol F. Margolin of counsel), for appellants.
Pedowitz & Meister, LLP, New York (Robert A. Meister of counsel), for respondents.
Manzanet–Daniels, J.P., Tom, Webber, Oing, JJ.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered December 12, 2017, which, to the extent appealed from as limited by the briefs, granted plaintiffs' motion for discovery sanctions to the extent of deeming all liability issues resolved in their favor, unanimously reversed, on the law and the facts, without costs, and the motion denied. Order, same court and Justice, entered January 9, 2018, which denied as academic defendants' motion for partial summary judgment, unanimously reversed, on the law, without costs, and the matter remanded to the motion court for a determination of the motion on the merits. Appeal from order, same court and Justice, entered February 7, 2018, which denied defendants' motion to renew, unanimously dismissed, without costs, as academic.
Plaintiffs failed to establish that defendants' conduct during discovery was willful, contumacious or in bad faith (see Lee v. 13th St. Entertainment LLC, 161 A.D.3d 631 [1st Dept. 2018] ; Palmenta v. Columbia Univ., 266 A.D.2d 90, 698 N.Y.S.2d 657 [1st Dept. 1999] ). At the time the motion was made, defendants were in violation of a single court order. Moreover, the court improvidently exercised its discretion in imposing the sanction nine months after plaintiffs brought their motion, when discovery had been completed and the note of issue filed.
In light of this determination, the denial of defendants' motion for summary judgment must be reversed and the motion remanded for a determination on the merits.