Baulieu v. Ardsley Associates L.P.

84 A.D.3d 666, 923 N.Y.S.2d 326

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 26, 2011
• Status: Published

Opinion

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered August 24, 2010, which, in this personal injury action, denied plaintiffs’ motion to strike the answer of defendants Ardsley Associates L.E and ISJ Management Corp., unanimously modified, on the facts and in the exercise of discretion, to preclude defendant Ardsley Associates L.E from asserting at trial either the negligence or responsibility of M.R. Snow Flowing, Inc. for the maintenance or repair of the alleged defective condition, and otherwise affirmed, without costs.

Plaintiffs’ failure to provide an affirmation of good faith in accordance with 22 NYCRR 202.7 “is excusable because any effort to resolve the present dispute non-judicially would have been futile” (Carrasquillo v Netsloh Realty Corp., 279 AD2d 334, 334 [2001] [internal quotation marks omitted]).

The delayed production of records pertaining to M.R. Snow Flowing, Inc. until after the statute of limitations had expired prejudiced plaintiffs. Accordingly, plaintiffs’ motion is granted to the extent indicated.

We have considered plaintiffs’ other contentions and find them unavailing. Concur — Andrias, J.E, Friedman, Catterson, Moskowitz and Román, JJ. [Prior Case History: 2010 NY Slip Op 32272(U).]