Rakauskas v. Grace Olivia, LLC

29 A.D.3d 355, 813 N.Y.S.2d 657

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 9, 2006
• Status: Published

Opinion

Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered December 5, 2005, striking defendants’ answer for noncompliance with their disclosure obligations, unanimously affirmed, with costs.

Defendants’ noncompliance with the Special Referee’s repeated directives to produce the QuickBooks data was willful and contumacious and warrants the striking of their answer (CPLR 3126). Even at the final conference with the Special Referee, at which defendants produced a CD-R for the first time, the information was contained in Excel-format summary documents, not the raw, detailed QuickBooks format they were advised was necessary. Absent a motion to vacate the instant order, defendants will not be heard to argue that the court improperly decided a motion that was not made on notice (cf. Bear, Stearns & Co., Inc. v Enviropower, LLC, 21 AD3d 855 [2005], appeal dismissed 6 NY3d 750 [2005]). We note that the Special Referee repeatedly advised defendants that she would recommend the striking of their answer if they did not produce the QuickBooks data (see id.). Concur—Andrias, J.P., Sullivan, Williams, Sweeny and McGuire, JJ.