Oppenheim v. Mojo-Stumer Associates Architects, P.C.

Appellate Division of the Supreme Court of New York

Oppenheim v. Mojo-Stumer Associates Architects, P.C.

69 A.D.3d 407, 892 N.Y.2d 91

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

DecidedJanuary 5, 2010

StatusPublished

This text of 69 A.D.3d 407 (Oppenheim v. Mojo-Stumer Associates Architects, P.C.) 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

Oppenheim v. Mojo-Stumer Associates Architects, P.C., 69 A.D.3d 407, 892 N.Y.2d 91 (N.Y. Ct. App. 2010).

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Opinion

Plaintiffs spoliated evidence central to their claim that renovations on their apartment, designed by Mojo-Stumer and to be performed by defendant Viscuso’s general contracting firm (Vista), were not complete when they invited a new contractor to perform substantial additional work without first permitting defendants to verify the need for such additions, warranting a sanction (see 430 Park Ave. Co. v Bank of Montreal, 9 AD3d 320 [2004]). However, because defendants had extensive personal knowledge of the status of the job, and indeed had repeatedly certified completion of various stages of the work, they were still able to offer a meaningful defense (id.; see also Kirschen v Marino, 16 AD3d 555 [2005]). As such, the appropriate sanction was preclusion of plaintiffs’ witness as an expert, but not as a fact witness.

The counterclaim for wrongful termination should have been dismissed in light of the individual defendants’ convictions for bribery and tax evasion in connection with this renovation contract (see Black v MTV Networks, 172 AD2d 8 [1991], lv dismissed 79 NY2d 915 [1992], Iv denied sub nom. Black v Viacom Intl., 80 NY2d 757 [1992]).

The court appropriately granted defendants’ motion to treat discovery in this matter as confidential, which is standard in commercial cases (see Mann v Cooper Tire Co., 56 AD3d 363, 365 [2008]). Concur—Tom, J.P., Andrias, McGuire and Manzanet-Daniels, JJ. [Prior Case History: 2009 NY Slip Op 30939(U).]

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Plaintiffs spoliated evidence central to their claim that renovations on their apartment, designed by Mojo-Stumer and to be performed by defendant Viscuso’s general contracting firm (Vista), were not complete when they invited a new contractor to perform substantial additional work without first permitting defendants to verify the need for such additions, warranting a sanction (see 430 Park Ave. Co. v Bank of Montreal, 9 AD3d 320 [2004]). However, because defendants had extensive personal knowledge of the status of the job, and indeed had repeatedly certified completion of various stages of the work, they were still able to offer a meaningful defense (id.; see also Kirschen v Marino, 16 AD3d 555 [2005]). As such, the appropriate sanction was preclusion of plaintiffs’ witness as an expert, but not as a fact witness.

The counterclaim for wrongful termination should have been dismissed in light of the individual defendants’ convictions for bribery and tax evasion in connection with this renovation contract (see Black v MTV Networks, 172 AD2d 8 [1991], lv dismissed 79 NY2d 915 [1992], Iv denied sub nom. Black v Viacom Intl., 80 NY2d 757 [1992]).

The court appropriately granted defendants’ motion to treat discovery in this matter as confidential, which is standard in commercial cases (see Mann v Cooper Tire Co., 56 AD3d 363, 365 [2008]). Concur—Tom, J.P., Andrias, McGuire and Manzanet-Daniels, JJ. [Prior Case History: 2009 NY Slip Op 30939(U).]

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Bluebook (online)

69 A.D.3d 407, 892 N.Y.2d 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oppenheim-v-mojo-stumer-associates-architects-pc-nyappdiv-2010.

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