Richard's Home Center & Lumber, Inc. v. Kownacki

247 A.D.2d 371, 668 N.Y.S.2d 906, 1998 N.Y. App. Div. LEXIS 859

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 1998
• Status: Published

Opinion

In an action to foreclose a mechanic’s lien, the defendants David P. Kownacki and Toby Kownacki appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Westchester County (Colabella, J.), entered April 4, 1997, which, inter alia, (1) conditionally granted the respondent’s motion to strike the appellants’ answer unless the appellants complied with certain discovery demands, and the appellants paid $750 as attorney’s fees and $100 motion costs to the respondent, and (2) conditioned the appellants moving for summary judgment upon certification by the court that discovery was complete.

Ordered that the order is modified by deleting the provision thereof which conditioned the appellants moving for summary judgment upon certification by the court that discovery was complete; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

It was not improper for the court to grant conditionally the respondent’s motion to strike the appellants’ answer unless the appellants paid $750 as attorney’s fees in view of the appellants’ failure to abide by the explicit terms of the court’s preliminary conference order insofar as it directed the appellants to comply with certain discovery demands (see, CPLR 3126; Summit Waterproofing & Restoration Corp. v Scarsdale Country Estates Owners, 228 AD2d 431; Davis v City of New York, 205 AD2d 442). There is also no reason to disturb the additional award of $100 in motion costs pursuant to CPLR 8202.

However, in view of the fact that CPLR 3212 (a) permits a party to “move for summary judgment * * * after issue has been joined”, the court improperly limited the appellants to moving for summary judgment only after the court certified that discovery was complete (see, Heist v Cameron, 211 AD2d 429; Matter of Hochberg v Davis, 171 AD2d 192).

The appellants’ remaining contentions are without merit.

Rosenblatt, J. P., Miller, Copertino and Pizzuto, JJ., concur.