Schapiro v. Seplow

300 A.D.2d 149, 751 N.Y.S.2d 848, 2002 N.Y. App. Div. LEXIS 12447

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 19, 2002
• Status: Published

Opinion

—Order, Supreme Court, New York County (Louis York, J.), entered June 7, 2002, which, in an action arising out of plaintiffs’ renting of certain premises, granted plaintiffs’ motion for disclosure sanctions to the extent of precluding defendants from taking plaintiffs’ depositions, striking defendants’ counterclaims, and conditionally striking defendants’ answer unless they paid plaintiffs $1,500 within 10 days; denied defendants’ cross motion seeking, inter alia, disclosure sanctions against plaintiffs and summary judgment dismissing the complaint as against defendant Van Se-plow; and directed plaintiffs to file a note of issue, unanimously modified, on the facts, to reduce the amount defendants must pay plaintiff to avoid the striking of their answer to $1,400, and to direct that defendants may take plaintiffs’ depositions within 30 days of service of a copy of this order with notice of entry, and otherwise affirmed, without costs.

The striking of defendants’ counterclaims is warranted by a record showing willful and contumacious noncompliance with their disclosure obligations concerning such counterclaims. We modify, however, to reduce the stenographer’s and attorney’s fees that defendants must pay plaintiffs to avoid the striking of their answer to the amount plaintiffs sought in their notice of motion. We also modify to give defendants one more opportunity to depose plaintiffs with respect to the complaint, as a form of relief for plaintiffs’ failure to verify their responses to interrogatories that defendants claim are necessary to effective oral examination of plaintiffs. Defendant Van Seplow’s claim that he is not an owner of the subject premises lacks documentary corroboration, such as the deed to the property or the rental agreement that the codefendant entered into with plaintiffs, and is otherwise too conclusory to warrant summary judgment dismissing the complaint as against him. Concur— Williams, P.J., Andrias, Buckley, Lerner and Gonzalez, JJ.