Opinion
No. 2019-10568 Index No. 519704/17
03-15-2023
Eulogio Rivera, et al., appellants, v. Eliseo Caban, et al., respondents.
Torrellas Law Offices, PLLC, Brooklyn, NY (Miguel A. Torrellas of counsel), for appellants. Jeanette Malaty, Glendale, NY, for respondents.
Torrellas Law Offices, PLLC, Brooklyn, NY (Miguel A. Torrellas of counsel), for appellants.
Jeanette Malaty, Glendale, NY, for respondents.
VALERIE BRATHWAITE NELSON, J.P. JOSEPH J. MALTESE WILLIAM G. FORD HELEN VOUTSINAS, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for the improper removal of the plaintiff Eulogio Rivera as president of the plaintiff Pentecostal Church El Redil, the plaintiffs appeal from an order of the Supreme Court, Kings County (Sylvia G. Ash, J.), dated June 19, 2019. The order denied the plaintiffs' motion pursuant to CPLR 3126 to strike the defendants' answer or, in the alternative, to preclude the defendants from offering certain evidence at trial, and granted the defendants' cross-motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiffs, Eulogio Rivera and Pentecostal Church El Redil (hereinafter the church), commenced the instant action against the defendants, who were members and officers of the church, alleging, inter alia, that the defendants improperly removed Rivera from his position as president of the church. The defendants answered. The plaintiffs moved pursuant to CPLR 3126 to strike the defendants' answer or, in the alternative, to preclude the defendants from offering certain evidence at trial, for failure to comply with discovery demands. The defendants cross-moved for summary judgment dismissing the complaint. The Supreme Court granted the cross-motion and denied the motion. The plaintiffs appeal.
Contrary to the plaintiffs' contention, the Supreme Court properly denied their motion pursuant to CPLR 3126 to strike the defendants' answer or, in the alternative, to preclude the defendants from offering certain evidence at trial, for failure to comply with discovery demands. There was no court order requiring disclosure (see CPLR 3126[3]; Emigrant Mtge. Co., Inc. v Beckerman, 105 A.D.3d 895, 896), and the plaintiffs otherwise failed to demonstrate that the defendants' failure to comply with the discovery demands was "clearly wilful and contumacious" (Johnson v Ortiz Transp., LLC, 205 A.D.3d 699, 700 [internal quotation marks omitted]).
The Supreme Court properly granted the defendants' cross-motion for summary judgment dismissing the complaint. Contrary to the plaintiffs' contention, the defendants made a prima facie showing of entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324). On their cross-motion, the defendants established that they properly removed Rivera from his position as president of the church and acted in accordance with the Religious Corporations Law as well as the bylaws of the church. The defendants demonstrated that Rivera was replaced with the defendant Eliseo Caban after Rivera was absent from the church for many years. In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 562). They did not present evidence establishing that the defendants acted improperly in replacing Rivera or violated the Religious Corporations Law or bylaws of the church.
The parties' remaining contentions are without merit.
BRATHWAITE NELSON, J.P., MALTESE, FORD and VOUTSINAS, JJ., concur.