W&W Glass, LLC v. 1113 York Avenue Realty Co.

83 A.D.3d 438, 920 N.Y.S.2d 347

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 2011
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Charles E. Ramos, J.), entered June 29, 2010, awarding plaintiff the principal sum of $7,965,164.30 against defendant 1113 York Avenue Realty Company LLC and the total sum of $521,050 against 1113 York and defendant 60th Street Development LLC as costs for the storage of material during the pendency of the action, and bringing up for review an order, same court and Justice, entered June 18, 2010, which granted plaintiffs motion to strike defendants’ answer, affirmative defenses and counterclaims and to foreclose mechanic’s liens, unanimously reversed, on the law and the facts, without costs, the judgment vacated and plaintiffs motion denied.

The record fails to support the motion court’s determination that defendants’ failure to comply with discovery obligations was willful, or in bad faith (see Fish & Richardson, P.C. v Schindler, 75 AD3d 219 [2010]; Banner v New York City Hous. Auth., 73 AD3d 502 [2010]). Absent such showing, the motion court erred in imposing the “harshest available penalty’’ against defendants (see Bassett v Bando Sangsa Co., 103 AD2d 728, 728 [1984]).

Finally, we note that the record discloses no evidence of defendants’ repeated failures to comply with the court’s discovery orders. Indeed, there appear to be no prior motions by plaintiff to compel disclosure, rendering any motion to strike the answer pursuant to CELR 3126 premature in this case. Concur— Andrias, J.P., Friedman, Catterson, Renwick and DeGrasse, JJ.