Opinion
15356 Index No. 850136/14 Case No. 2021–00274
02-22-2022
EMIGRANT BANK, as successor-by-merger with Emigrant Savings Bank–Manhattan, Plaintiff–Appellant, v. Luigi ROSABIANCA et al., Defendants, Secured Lending Corp., Defendant–Respondent.
Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for appellant. The Law Offices of Mitchell Cantor, New York (Mitchell Cantor of counsel), for respondent.
Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for appellant.
The Law Offices of Mitchell Cantor, New York (Mitchell Cantor of counsel), for respondent.
Renwick, J.P., Kennedy, Scarpulla, Rodriguez, Higgitt, JJ.
Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about June 16, 2020, which granted plaintiff Emigrant Bank, as successor-by-merger with Emigrant Savings Bank–Manhattan (Emigrant)’s fourth motion to strike the answer of defendant Secured Lending Corp. (SLC) only to the extent of ordering SLC to pay reasonable attorneys’ fees incurred by Emigrant in preparing the motion, and otherwise denied the motion as academic, unanimously affirmed, without costs.
"It is well established that a trial court has broad discretion over the discovery process, and its determinations will not be set aside absent a clear showing of abuse of discretion" ( Rodney v. City of New York, 192 A.D.3d 606, 606, 144 N.Y.S.3d 705 [1st Dept. 2021] [citations omitted]). "In monitoring discovery, any sanction levied by a court must be proportionate to the conduct at issue" ( Young v. City of New York, 104 A.D.3d 452, 454, 960 N.Y.S.2d 116 [1st Dept. 2013] ). In this case, Supreme Court providently exercised its discretion in granting the motion to strike only to the extent of ordering SLC to pay reasonable attorneys’ fees incurred by Emigrant in preparing the motion, and otherwise denying, as SLC served an extensive document production on Emigrant, and agreed that its further supplemental discovery production rendered the motion to strike academic ( Adzer v. Rudin Mgt. Co., 50 A.D.3d 1070, 1072, 856 N.Y.S.2d 674 [2d Dept. 2008] ).
Further, there was no reason for SLC to move to vacate, when it had complied with initial production, nor was there spoliation, as the subject emails were contained in the record on appeal, and Emigrant never alleged that the original digital records or paper records were destroyed.