Gall v. Summit Rovins & Feldesman

254 A.D.2d 39, 678 N.Y.S.2d 602, 1998 N.Y. App. Div. LEXIS 10081

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 6, 1998
• Status: Published

Opinion

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about July 14, 1997, which, inter alia, granted defendants’ CPLR 3126 motion, to strike plaintiffs’ reply to defendants’ counterclaims to recover legal fees, unanimously affirmed, with costs.

Evasive and dilatory conduct demonstrate that plaintiffs’ failure to respond to defendants’ February 6, 1997 notice of discovery was willful. First, plaintiffs’ March 11, 1997 motion for a protective order, which asked for an extension of time to respond to the notice pending completion of an out-of-State criminal trial in which one of the plaintiffs was involved, acknowledged, and indeed was based on, the court’s February 24, 1997 order directing, inter alia, plaintiffs’ response to the notice by March 11, 1997. No explanation was given why plaintiffs did not advise the court on February 24, or if not then, at least some decent interval before the March 11 deadline, of this criminal matter and of the difficulties it was causing them in responding to the notice. Second, plaintiffs were given an extension, on April 21, when the court, deciding plaintiffs’ March 11 motion for a protective order and defendants’ cross motion for CPLR 3126 sanctions, gave plaintiffs until May 12 to respond to the notice. We agree with the motion court that plaintiffs’ claim that the criminal trial rendered their compliance impossible, which the April 21 order forewarned would be rejected, “is couched in the most general terms”, and should be rejected. Concur — Sullivan, J. P., Milonas, Nardelli and Tom, JJ.