Board of Managers of the Atrium Condominium v. West 79th Street Corp.

Appellate Division of the Supreme Court of New York

Board of Managers of the Atrium Condominium v. West 79th Street Corp.

17 A.D.3d 108, 792 N.Y.S.2d 444, 2005 N.Y. App. Div. LEXIS 3439

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 5, 2005

StatusPublished

Cited by2 cases

This text of 17 A.D.3d 108 (Board of Managers of the Atrium Condominium v. West 79th Street Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Board of Managers of the Atrium Condominium v. West 79th Street Corp., 17 A.D.3d 108, 792 N.Y.S.2d 444, 2005 N.Y. App. Div. LEXIS 3439 (N.Y. Ct. App. 2005).

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Opinion

Order, Supreme Court, New York County (Herman Cahn, J.), entered May 14, 2004, which denied defendant’s motion for a default judgment on its counterclaims or, alternatively, further disclosure in connection with the alleged default, and granted defendant’s motion for disclosure sanctions on account of plaintiffs failure to appear at a court-ordered deposition only to the extent of rescheduling the deposition and awarding defendant a money penalty (incorrectly denominated a contempt sanction) to be assessed after the deposition is conducted, unanimously affirmed, without costs.

Assuming in defendant’s favor that plaintiff failed to timely serve a reply to the counterclaims, a default judgment on the counterclaims should nevertheless be denied, since it appears [109]*109that plaintiff reasonably believed that the matter was being held in abeyance pending then ongoing extensive negotiations, and defendant was at all times aware of plaintiffs position and not otherwise prejudiced by the delay (see Eastern Resource Serv. v Mounbatten Sur. Co., 289 AD2d 283 [2001]). Certainly, any failure to timely serve a reply was not part of a demonstrable pattern of willful delay. In view of the foregoing, defendant’s request for electronic discovery of plaintiffs attorneys’ computers, characterized by the motion court as part of its “preoccupation” with proving that an affidavit attesting to service of the reply was backdated and that plaintiff’s attorney perjured himself in affirming the timeliness of the reply, should be denied as academic. The motion court also properly refused to dismiss the complaint on account of plaintiffs noncompliance with a court order scheduling its deposition, there being an insufficient showing of willfulness to warrant such drastic relief, and instead properly excused the noncompliance upon condition that plaintiff pay defendant a money penalty (see Irizarry v Ashar Realty Corp., 14 AD3d 323 [2005]).

We have considered the parties’ other arguments for affirmative relief and find them unavailing. Concur—Buckley, EJ., Tom, Andrias and Sullivan, JJ.

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Order, Supreme Court, New York County (Herman Cahn, J.), entered May 14, 2004, which denied defendant’s motion for a default judgment on its counterclaims or, alternatively, further disclosure in connection with the alleged default, and granted defendant’s motion for disclosure sanctions on account of plaintiffs failure to appear at a court-ordered deposition only to the extent of rescheduling the deposition and awarding defendant a money penalty (incorrectly denominated a contempt sanction) to be assessed after the deposition is conducted, unanimously affirmed, without costs.

Assuming in defendant’s favor that plaintiff failed to timely serve a reply to the counterclaims, a default judgment on the counterclaims should nevertheless be denied, since it appears [109]*109that plaintiff reasonably believed that the matter was being held in abeyance pending then ongoing extensive negotiations, and defendant was at all times aware of plaintiffs position and not otherwise prejudiced by the delay (see Eastern Resource Serv. v Mounbatten Sur. Co., 289 AD2d 283 [2001]). Certainly, any failure to timely serve a reply was not part of a demonstrable pattern of willful delay. In view of the foregoing, defendant’s request for electronic discovery of plaintiffs attorneys’ computers, characterized by the motion court as part of its “preoccupation” with proving that an affidavit attesting to service of the reply was backdated and that plaintiff’s attorney perjured himself in affirming the timeliness of the reply, should be denied as academic. The motion court also properly refused to dismiss the complaint on account of plaintiffs noncompliance with a court order scheduling its deposition, there being an insufficient showing of willfulness to warrant such drastic relief, and instead properly excused the noncompliance upon condition that plaintiff pay defendant a money penalty (see Irizarry v Ashar Realty Corp., 14 AD3d 323 [2005]).

We have considered the parties’ other arguments for affirmative relief and find them unavailing. Concur—Buckley, EJ., Tom, Andrias and Sullivan, JJ.

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17 A.D.3d 108, 792 N.Y.S.2d 444, 2005 N.Y. App. Div. LEXIS 3439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-managers-of-the-atrium-condominium-v-west-79th-street-corp-nyappdiv-2005.

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