Opinion
2022-00939 Index 153632/13
02-10-2022
Mary Diamond, Plaintiff-Respondent, v. WWP Off., LLC, et al., Defendants-Appellants. Appeal No. 15286 No. 2021-00238
London Fischer LLP, New York (Amy Kramer of counsel), for appellants. Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for respondent.
London Fischer LLP, New York (Amy Kramer of counsel), for appellants.
Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for respondent.
Before: Gische, J.P., Kern, Moulton, Kennedy, Rodriguez, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered December 21, 2020, which, to the extent appealed from as limited by the briefs, denied defendants' motion to strike the complaint or, in the alternative, compel plaintiff to provide certain discovery, unanimously affirmed, without costs.
Defendants failed to show that plaintiff willfully and contumaciously refused to comply with discovery orders which warranted striking the complaint (see CPLR 3126; see Watson v City of New York, 157 A.D.3d 510, 514 [1st Dept 2018]).
Defendants failed to show that "unusual or anticipated circumstances" developed after the note of issue was filed that warranted additional post-note of issue discovery concerning the back injury plaintiff sustained before the subject accident since they were aware of that injury for three years prior to filing the note of issue (see 22 NYCRR 202.21 [d]; Drapper v Horan, 164 A.D.3d 1192, 1993 [1st Dept 2018]).