Great Northern Insurance v. Zen Restoration Inc.

Appellate Division of the Supreme Court of New York

Great Northern Insurance v. Zen Restoration Inc.

105 A.D.3d 446, 961 N.Y.S.2d 778

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

DecidedApril 4, 2013

StatusPublished

This text of 105 A.D.3d 446 (Great Northern Insurance v. Zen Restoration Inc.) 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

Great Northern Insurance v. Zen Restoration Inc., 105 A.D.3d 446, 961 N.Y.S.2d 778 (N.Y. Ct. App. 2013).

Pincite

Opinion

Order, Supreme Court, New York County (Judith J. Gische, J.), entered October 7, 2011, which denied defendant Gallagher’s post-note of issue motion to compel production of evidence and ordered that defendant Zen Restoration Inc. is precluded from offering certain evidence at trial, unanimously modified, on the law, so much of the order as precluded Zen from offering evidence vacated, and otherwise affirmed, with costs. Appeal from order, same court and Justice, entered May 25, 2012, which granted defendant Gallagher’s motion for summary judgment on his cross claim against defendant Zen for breach of contract, unanimously withdrawn in accordance with the terms of the parties’ stipulation.

[447]*447The motion court appropriately denied defendant Gallagher’s post-note of issue motion to compel production of evidence. The parties had previously stipulated that all discovery was complete. Under these circumstances, it was an improvident exercise of discretion for the motion court to preclude Zen from offering evidence at trial, especially since Gallagher sought to compel, and did not move for sanctions pursuant to CPLR 3126 (cf. Emmitt v City of New York, 66 AD3d 504, 505 [1st Dept 2009] [not an improvident exercise of discretion for motion court to grant plaintiffs motion to strike defendant’s answer to extent of precluding it from offering certain evidence]).

Concur—Andrias, J.P, Saxe, DeGrasse, Abdus-Salaam and Feinman, JJ.

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Order, Supreme Court, New York County (Judith J. Gische, J.), entered October 7, 2011, which denied defendant Gallagher’s post-note of issue motion to compel production of evidence and ordered that defendant Zen Restoration Inc. is precluded from offering certain evidence at trial, unanimously modified, on the law, so much of the order as precluded Zen from offering evidence vacated, and otherwise affirmed, with costs. Appeal from order, same court and Justice, entered May 25, 2012, which granted defendant Gallagher’s motion for summary judgment on his cross claim against defendant Zen for breach of contract, unanimously withdrawn in accordance with the terms of the parties’ stipulation.

[447]*447The motion court appropriately denied defendant Gallagher’s post-note of issue motion to compel production of evidence. The parties had previously stipulated that all discovery was complete. Under these circumstances, it was an improvident exercise of discretion for the motion court to preclude Zen from offering evidence at trial, especially since Gallagher sought to compel, and did not move for sanctions pursuant to CPLR 3126 (cf. Emmitt v City of New York, 66 AD3d 504, 505 [1st Dept 2009] [not an improvident exercise of discretion for motion court to grant plaintiffs motion to strike defendant’s answer to extent of precluding it from offering certain evidence]).

Concur—Andrias, J.P, Saxe, DeGrasse, Abdus-Salaam and Feinman, JJ.

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Bluebook (online)

105 A.D.3d 446, 961 N.Y.S.2d 778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/great-northern-insurance-v-zen-restoration-inc-nyappdiv-2013.