Pu v. Mitsopoulos

79 A.D.3d 530, 911 N.Y.S.2d 904

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 14, 2010
• Status: Published

Opinion

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered October 5, 2009, which, in this action to recover attorneys’ fees, denied plaintiff’s motion to strike defendants’ answer or compel discovery, granted defendants’ cross motion for sanctions to the extent of directing plaintiff to pay $5,000 directly to defendants’ counsel, and directed plaintiff to turn over the file in the underlying litigation, unanimously affirmed, with costs.

Plaintiff sought to conduct discovery as to an alleged fraudulent conveyance in spite of this Court’s finding that he had “no basis for challenging the underlying conveyances” and that “there is no indication that such conveyances were at all fraudulent” (67 AD3d 561, 562 [2009]), and sought to enforce document demands for all documents in unacceptably broad categories. Plaintiff argues that he is entitled to seek more discovery in an attempt to cure the deficiencies in his complaint, but he never made this request before, and in any event he has made no attempt to support the request with a “demonstration how further discovery might reveal the existence of such evidence” (see Sovereign Metal Corp. v Ciraco, 210 AD2d 75, 76 [1994] [internal quotation marks and citation omitted]).

The amount of reasonable counsel fees awarded, which was less than defendants sought, was properly based on counsel’s affirmation.

We have considered plaintiffs remaining contentions and find them unavailing. Concur — Sweeny, J.P., Moskowitz, Renwick, DeGrasse and Román, JJ. [Prior Case History: 2009 NY Slip Op 32339(11).]