Perez v. Stonehill

121 A.D.3d 960, 993 N.Y.S.2d 920

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 22, 2014
• Docket: 2014-00040
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Nassau County (Feinman, J.), dated September 12, 2013, which granted the defendants’ motion pursuant to CPLR 3126 (3) to dismiss the complaint, and (2), as limited by her brief, from so much of an order of the same court dated December 12, 2013, as denied that branch of her motion which was, in effect, for leave to renew her opposition to the defendants’ motion pursuant to CPLR 3126 (3) to dismiss the complaint.

Ordered that the order dated September 12, 2013, is reversed, on the law, and the defendants’ motion pursuant to CPLR 3126 (3) to dismiss the complaint is denied; and it is further,

Ordered that the appeal from the order dated December 12, 2013, is dismissed as academic in light of our determination on the appeal from the order dated September 12, 2013; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The Supreme Court improperly granted the defendants’ motion pursuant to CPLR 3126 (3) to dismiss the complaint as a sanction for the plaintiff’s failure to comply with certain discovery. The defendants’ failure to submit an affirmation of the parties’ good faith effort to resolve the disclosure dispute pursuant to 22 NYCRR 202.7 (a) (2) in connection with their motion required the denial of the motion (see Matter of Greenfield v Board of Assessment Review for Town of Babylon, 106 AD3d 908 [2013]; Natoli v Milazzo, 65 AD3d 1309, 1310-1311 [2009]; Romero v Korn, 236 AD2d 598 [1997]). Therefore, we reverse the order dated September 12, 2013, and deny the defendants’ motion.

The plaintiffs remaining contention has been rendered academic in light of our determination.

Skelos, J.E, Dickerson, Maltese and LaSalle, JJ., concur.