| Hameroff & Sons, LLC v Plank, LLC |
| 2013 NY Slip Op 05271 [108 AD3d 908] |
| July 11, 2013 |
| Appellate Division, Third Department |
| Hameroff and Sons, LLC, Respondent, v Plank,LLC, Appellant. |
—[*1] Law Office of John Hoggan, PLLC, Albany (John D. Hoggan Jr. of counsel), forrespondent.
McCarthy, J. Appeal from an order of the Supreme Court (Lynch, J.), entered August13, 2012 in Albany County, which partially granted plaintiff's motion to, among otherthings, preclude certain evidence.
The parties entered into a contract for defendant to construct and renovate a facilityowned by plaintiff. After a dispute arose, defendant filed a mechanic's lien against theproperty. In May 2009, the parties negotiated a stipulation of settlement requiringplaintiff to pay defendant $105,000 in satisfaction of its obligations under the contractand requiring defendant to, among other things, complete all items on a punch list. Itappears that neither party fully performed in accordance with the stipulation. In July2009, plaintiff sent a letter to defendant's contract administrator, Carl Holsberger,informing him that counsel had been retained to commence litigation. In March 2010,defendant commenced an action in Schenectady City Court alleging breach of thesettlement agreement. Plaintiff later commenced an action in Supreme Court alleging,among other things, breach of the original contract and negligent construction. SupremeCourt consolidated the two actions and provided a discovery schedule. Defendant failedto respond to plaintiff's December 2010 discovery demands and eventually moved forsummary judgment. Plaintiff cross-moved to compel discovery (see CPLR 3124).In August 2011, Supreme Court denied defendant's motion for summary judgment,finding that the settlement agreement was ambiguous, and granted plaintiff's crossmotion, directing defendant to serve discovery responses within 20 days.[*2]
Defendant did not timely respond, so SupremeCourt set another deadline. Defendant again failed to timely respond, but finally allowedplaintiff to review documents in January 2012; still, no written response to the demandswas provided. Plaintiff complained about irregularities and missing documents, butreceived no response from defendant. In March 2012, 15 months after discoverydemands were initially served, plaintiff moved pursuant to CPLR 3126 for preclusionand issue resolution. After giving the parties extensive opportunities to submit additionalpapers, Supreme Court partially granted plaintiff's motion, found that defendant willfullyfailed to comply with discovery demands and precluded defendant from offeringevidence concerning the stipulation of settlement. Defendant appeals.
Supreme Court did not abuse its discretion by precluding defendant from offeringcertain evidence. Trial courts have "broad discretionary power in controlling discoveryand disclosure, and only a clear abuse of discretion will prompt appellate action"(Geary v Hunton & Williams, 245 AD2d 936, 938 [1997]; accord Rockman v Bartlett, 49AD3d 1072, 1073 [2008]; see Premo v Rosa, 93 AD3d 919, 920 [2012]). BetweenDecember 2010 and March 2012, plaintiff repeatedly requested that defendant respond todiscovery demands. Despite these requests, numerous established deadlines and threecourt orders regarding discovery, defendant did not object to the demands (seeCPLR 3122), but simply failed to respond. This pattern of noncompliance gave rise to aninference that the nondisclosure was willful, supporting the sanctions imposed (see Matter of Kalin, 79 AD3d1381, 1383 [2010]; VanEtten Oil Co., Inc. v Exotic Flora & Fauna, Ltd., 78 AD3d1438, 1439-1440 [2010]). Further establishing willfulness, documentary evidenceshowed that Holsberger's sworn explanations regarding the deletion of his email wereinaccurate and misleading, in that the deletion occurred after defendant was aware of thepotential for litigation and possibly after litigation was commenced (cf. VOOM HD Holdings LLC vEchoStar Satellite L.L.C., 93 AD3d 33, 45 [2012]).
Defendant gave no explanation for its failure to provide plaintiff with email from itsother employees, save one individual who left defendant's employ a year prior to thestipulation. Defendant also failed to explain why it did not respond to demands for draftsof pleadings and papers filed in the City Court action.[FN1]Although defendant contends that the emails were not relevant, relevance of destroyeddocuments is presumed if the destruction was intentional or willful (see id.; Ahroner v Israel Discount Bank ofN.Y., 79 AD3d 481, 482 [2010]). The relevance of the emails to the presentcauses of action was further established by defendant's own reliance on one ofHolsberger's emails in support of its 2011 motion for summary judgment.[FN2][*3]Accordingly, considering defendant's continued andwillful failure to comply with demands and court orders for disclosure, Supreme Courtdid not abuse its discretion by precluding defendant from offering evidence on aparticular issue (see CPLR 3126 [2]; Matter of Scaccia, 66 AD3d 1247, 1250 [2009]; O'Brien v Clark Equip. Co., 25AD3d 958, 960 [2006]; seealso Sugar Foods De Mexico v Scientific Scents, LLC, 88 AD3d 1194, 1196[2011]).
Although defendant's appeal is meritless, we do not find it so frivolous as to warrantsanctions (see Matter of Garett YY., 258 AD2d 702, 704 [1999]).
Peters, P.J., Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed, withcosts. [Prior Case History: 36 Misc 3d 1229(A), 2012 NY Slip Op 51553(U).]
Footnote 1: On behalf of defendant,Holsberger dismissively responded that plaintiff—as a party—had copies ofall pleadings filed in City Court. This response—provided in a motion affidavit,not in a formal written response to plaintiff's discovery demands—did not addressdefendant's failure to supply all drafts of such pleadings, as demanded.
Footnote 2: Defendant contends thatthe stipulation of settlement is unambiguous, relegating any emails to the category ofinadmissible extrinsic evidence concerning its cause of action on the settlement. Thisargument is belied by Supreme Court's 2011 order denying defendant's motion forsummary judgment on the basis that the stipulation is ambiguous. Defendant did notappeal that order.