Caval v. City of New York

89 A.D.3d 885, 932 N.Y.2d 723

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 2011
• Status: Published

Opinion

The plaintiff failed to show that the defendants violated a conditional order of preclusion, that they otherwise failed to comply with the plaintiffs discovery demands, or that, if they did fail to so comply, such failure was willful or contumacious. Accordingly, the Supreme Court did not improvidently exercise its discretion in denying the plaintiffs motion pursuant to CPLR 3126 to strike the defendants’ answer (see Morano v Westchester Paving & Sealing Corp., 7 AD3d 495, 496 [2004]; see also Mazza v Seneca, 72 AD3d 754 [2010]; Steven L. Levitt & Assoc., P.C. v Balkin, 54 AD3d 403, 406 [2008]; Kuzmin v Visiting Nurse Serv. of N.Y., 22 AD3d 643, 644 [2005]). The Supreme Court also providently exercised its discretion in granting the defendants’ cross motion to compel the plaintiff to file a note of issue, as discovery was complete and the additional discovery to which the plaintiff claimed she was entitled was not material or necessary to the prosecution of her action (cf. Steven L. Levitt & Assoc., P.C. v Balkin, 54 AD3d at 406; see generally Foster v Herbert Slepoy Corp., 74 AD3d 1139 [2010]; Casabona v Huntington Union Free School Dist., 29 AD3d 723 [2006]; Vyas v Campbell, 4 AD3d 417, 418 [2004]). Rivera, J.P., Dickerson, Eng and Roman, JJ., concur.