Rosenbaum v. Festinger

2017 NY Slip Op 4872, 151 A.D.3d 897, 54 N.Y.S.3d 301

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 2017
• Docket: 2015-02207
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Kings County (Rachel A. Adams, J.), dated December 30, 2014. The order granted those branches of the plaintiff’s motion which were pursuant to CPLR 3126 to preclude the defendant from offering evidence at trial as to his financial circumstances unless he complied with certain discovery requests and for an award of counsel fees.

Ordered that the order is affirmed, with costs.

The defendant’s argument that the plaintiff’s motion for a conditional order of preclusion based on his failure to comply with discovery demands should have been denied for the failure to file an affirmation of good faith is not properly before this Court because it was not raised in opposition to the motion (see Pepenella v Brumar Day Spa Corp., 143 AD3d 876, 877 [2016]; Mariano v Fiorvante, 118 AD3d 961, 962 [2014]).

The Supreme Court providently exercised its discretion in awarding counsel fees to the plaintiff for the necessity of bringing the motion (see CPLR 3126).

The defendant’s remaining contentions are without merit.

Chambers, J.P., Roman, Miller and Connolly, JJ., concur.