Chamberlain, D'Amanda, Oppenheimer & Greenfield v. Beauchamp

Appellate Division of the Supreme Court of New York

Chamberlain, D'Amanda, Oppenheimer & Greenfield v. Beauchamp

209 A.D.2d 983, 619 N.Y.S.2d 451

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

DecidedNovember 16, 1994

StatusPublished

This text of 209 A.D.2d 983 (Chamberlain, D'Amanda, Oppenheimer & Greenfield v. Beauchamp) 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.

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Chamberlain, D'Amanda, Oppenheimer & Greenfield v. Beauchamp, 209 A.D.2d 983, 619 N.Y.S.2d 451 (N.Y. Ct. App. 1994).

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Opinion

—Order and judgment unanimously modified on the law and as modified affirmed with costs to defendants in accordance with the following Memorandum: As limited by their brief (see, Ciesinski v Town of Aurora, 202 AD2d 984), defendants challenge that part of an order and judgment that granted plaintiff’s motion to strike defendants’ answer and counterclaim and awarded plaintiff judgment on its complaint as a CPLR 3126 sanction for defendants’ willful failure to disclose. We conclude that defendants’ failure to attend the deposition as scheduled did not constitute a willful failure to disclose (see, CPLR 3126). Defendants reasonably requested an adjournment of the deposition to allow their new counsel time to review the file. Moreover, plaintiff’s service of a notice of deposition on defendants was improper. Plaintiff had failed to comply with defendants’ outstanding discovery demands and, at the time of plaintiff’s demand, defendants were not represented by counsel and had time under the court’s order to retain new counsel (cf, CPLR 321 [c]). (Appeal from Order and Judgment of Supreme Court, Monroe County, Sir kin, J.— Counsel Fees.) Present—Denman, P. J., Green, Balio, Wesley and Callahan, JJ.

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—Order and judgment unanimously modified on the law and as modified affirmed with costs to defendants in accordance with the following Memorandum: As limited by their brief (see, Ciesinski v Town of Aurora, 202 AD2d 984), defendants challenge that part of an order and judgment that granted plaintiff’s motion to strike defendants’ answer and counterclaim and awarded plaintiff judgment on its complaint as a CPLR 3126 sanction for defendants’ willful failure to disclose. We conclude that defendants’ failure to attend the deposition as scheduled did not constitute a willful failure to disclose (see, CPLR 3126). Defendants reasonably requested an adjournment of the deposition to allow their new counsel time to review the file. Moreover, plaintiff’s service of a notice of deposition on defendants was improper. Plaintiff had failed to comply with defendants’ outstanding discovery demands and, at the time of plaintiff’s demand, defendants were not represented by counsel and had time under the court’s order to retain new counsel (cf, CPLR 321 [c]). (Appeal from Order and Judgment of Supreme Court, Monroe County, Sir kin, J.— Counsel Fees.) Present—Denman, P. J., Green, Balio, Wesley and Callahan, JJ.

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209 A.D.2d 983, 619 N.Y.S.2d 451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chamberlain-damanda-oppenheimer-greenfield-v-beauchamp-nyappdiv-1994.

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