Kaparic v. 309 E. 5 St. LLC

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 25, 2016
• Docket: 2016 NYSlipOp 50814(U)
• Status: Published

Opinion

Mary Kaparic, Plaintiff-Respondent,

against

309 East 5 Street LLC, Fame Partners, LLC and R.A. Cohen & Associates, Defendants-Appellants.

Defendants appeal from an order of the Civil Court of the City of New York, New York County (Paul A. Goetz, J.), entered August 12, 2015, which denied their motion to preclude, or in the alternative, to compel compliance with certain discovery demands.

Per Curiam.

Order (Paul A. Goetz, J.), entered August 12, 2015, reversed, without costs, and defendants' motion is granted to the extent of precluding plaintiff from offering evidence of her injuries unless she fully complies with the October 29, 2010 order of Judge Engoron within 60 days after service of a copy of this order with notice of entry.

While we appreciate and understand Civil Court's frustration with the pace of this now 13-year old trip and fall action, the court should not have forced defendants to trial without an opportunity to complete discovery (see Lipson v Dime Sav. Bank of NY, 203 AD2d 161, 162-163 [1994]; M & J Trimming v Kew Mgt. Corp., 254 AD2d 21 [1998]). The record shows that if anyone, it was plaintiff, not defendants, who engaged in dilatory conduct by failing to comply with numerous prior discovery orders issued by judges of coordinate jurisdiction. Moreover, the outstanding discovery relates to conditions that plaintiff placed "in controversy" through her deposition testimony and bill of particulars (see Pirone v Castro, 82 AD3d 431 [2011]). We deem it appropriate to grant plaintiff a final opportunity to comply by granting defendants' motion to preclude conditionally (see Cela v Goodyear Tire & Rubber Co., 286 AD2d 640 [2001]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: May 25, 2016