| Trataros Constr., Inc. v New York City School Constr. Auth. |
| 2007 NY Slip Op 10526 [46 AD3d 872] |
| December 26, 2007 |
| Appellate Division, Second Department |
| Trataros Construction, Inc., Respondent, v New York CitySchool Construction Authority, Appellant, et al., Defendants. |
—[*1] Georgoulis & Associates, PLLC, New York, N.Y. (George Marco and Susan R. Nudelman ofcounsel), for respondent.
In an action to recover damages for breach of contract, the defendant New York City SchoolConstruction Authority appeals, as limited by its brief, from so much of (1) an order of theSupreme Court, Kings County (Solomon, J.), dated November 2, 2005, as denied that branch ofits motion which was pursuant to CPLR 3126 to dismiss the complaint with prejudice as asanction for the plaintiff's failure to produce Costas Trataros and Nicos Trataros for depositionsby a date certain and, (2) an order of the same court dated August 16, 2006, as denied thosebranches of its motion which were for leave to renew and for leave to amend its answer.
Ordered that the order dated August 16, 2006, is modified, on the facts and in the exercise ofdiscretion, by deleting the provision thereof denying that branch of the motion of the defendantNew York City School Construction Authority which was for leave to renew and substitutingtherefor a provision granting that branch of the motion and, upon renewal, vacating the orderdated November 2, 2005, and granting that branch of the prior motion which was pursuant toCPLR 3126 to dismiss the complaint as a sanction for the plaintiff's failure to produce CostasTrataros and Nicos Trataros for depositions by a date certain, to the extent of directing dismissalof the complaint with prejudice unless, within 45 days, the plaintiff produces Costas Trataros andNicos Trataros for depositions; as so modified, the order dated August 16, 2006, is affirmedinsofar as appealed from, with costs, and the time for the plaintiffs to produce Costas Tratarosand Nicos Trataros for depositions is extended until 45 days from the date of service of a copy ofthis decision [*2]and order upon the plaintiff; and it is further,
Ordered that the appeal from the order dated November 2, 2005 is dismissed as academic,without costs or disbursements, in light of our determination on the appeal from the order datedAugust 16, 2006.
The Supreme Court improvidently exercised its discretion in denying that branch of themotion of the defendant New York City School Construction Authority (hereinafter the SCA),which was for leave to renew that branch of its prior motion which was pursuant to CPLR 3126to dismiss the complaint as a sanction for the plaintiff's failure to produce Costas Trataros andNicos Trataros for depositions by a date certain. The SCA proffered new facts on its motion torenew (see CPLR 2221 [e]) establishing that, even after the plaintiff became subject to anorder dated November 2, 2005, inter alia, compelling it to produce Costas Trataros and NicosTrataros for depositions, it expressly refused to produce them. Thus, to the extent that the SCAsought renewal in order to change the contingent penalty to be imposed on the plaintiff for failingto produce Costas Trataros and Nicos Trataros for depositions from preclusion of their testimonyto dismissal of the complaint, the SCA's motion to renew should have been granted. Indetermining that the plaintiff's failure to produce Costas Trataros and Nicos Trataros fordepositions would result only in preclusion of their testimony at trial (see CPLR 3126[3]), the Supreme Court failed to account for the willful and contumacious refusal of the plaintiffto produce these witnesses and to afford the SCA meaningful enforcement of the grant of itsmotion to compel (see CPLR 3124). Under the circumstances of this case, where thewitnesses' testimony may be crucial to the ability of the SCA, inter alia, to establish the plaintiff'sresponsibility for premature deterioration of the facade of the subject real property, and in viewof the plaintiff's flat-out refusal twice to produce either witness, mere preclusion of the witnesses'testimony was not a sufficient sanction under CPLR 3126 (cf. Poulas v U-Haul Intl., 288AD2d 202 [2001]; Postel v New York Univ. Hosp., 262 AD2d 40, 42 [1999]; Mills vDucille, 170 AD2d 657, 658 [1991]).
As we similarly held in a companion case, the Supreme Court properly denied that branch ofthe SCA's motion which was for leave to amend its answer (see Trataros Constr., Inc. v NewYork City School Constr. Auth., 46 AD3d 874 [2007] [decided herewith]). Crane, J.P.,Spolzino, Krausman and McCarthy, JJ., concur.