| Adzer v Rudin Mgt. Co., Inc. |
| 2008 NY Slip Op 04041 [50 AD3d 1070] |
| April 29, 2008 |
| Appellate Division, Second Department |
| Jadadic Adzer et al., Appellants, v Rudin Management Co.,Inc., et al., Respondents, et al., Defendants. (And a Third-PartyAction.) |
—[*1] Herzfeld & Rubin, P.C., New York, N.Y. (Miriam Skolnik and David B. Hamm of counsel),for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Queens County (Weiss, J.), dated June 7, 2006, which granted the motionof the defendants Rudin Management Co., Inc., and Three Times Square Center Partners, LLP,for leave to renew and reargue their opposition to that branch of the plaintiffs' motion which waspursuant to CPLR 3126 to impose a sanction upon them for their failure to make disclosure,which was determined in an order dated November 5, 2004, and for leave to renew and rearguetheir opposition to that branch of the plaintiffs' subsequent motion which was, in effect, to striketheir answer, which was determined in an order dated January 23, 2006, and, upon renewal andreargument, vacated so much of the order dated January 23, 2006, as struck the answer of thosedefendants.
Ordered that the order dated June 7, 2006 is modified, on the law, by adding a provisionthereto directing that the attorneys for the defendants Rudin Management Co., Inc. and ThreeTimes Square Center Partners, LLP, pay to the plaintiffs the sum of $1,500; as so modified, theorder is affirmed, without costs or disbursements, and the time for the attorneys for thedefendants Rudin Management Co., Inc. and Three Times Square Center Partners, LLP, to pay tothe plaintiffs the sum of $1,500 is 30 days after service upon them of a copy of this decision andorder.[*2]
The plaintiff Jadadic Adzer allegedly was injured in thesub-basement of the premises owned and managed by the defendants Rudin Management Co.,Inc. and Three Times Square Center Partners, LLP (hereinafter the Rudin defendants), when alocker in the ladies' locker room fell on her. During the discovery process the parties engaged inmotion practice which resulted in the court issuing a conditional order dated November 5, 2004,striking the Rudin defendants' answer unless they furnished to the plaintiffs, within a specifiedperiod of time, certain items of discovery demanded by the plaintiffs, or alternatively, provided a"detailed statement, made under oath," indicating, inter alia, that such items did not exist or weredestroyed and the basis for such destruction.
Subsequently, the plaintiffs claimed that the discovery was not provided within the timespecified in the conditional order and they moved, inter alia, in effect, to strike the Rudindefendants' answer. The Rudin defendants opposed the motion. In an order dated January 23,2006 the court determined, among other things, that the Rudin defendants had not complied withthe conditional order and struck their answer.
Thereafter, the Rudin defendants moved for leave to renew and reargue, among other things,that branch of the plaintiffs' prior motion which was, in effect, to strike their answer. In supportof that motion, the Rudin defendants presented evidence, inter alia, that certain documentsresponsive to the plaintiffs' discovery demand had been removed from their possession, and that,in any event, the plaintiffs were not prejudiced by their inability to comply with that portion ofthe conditional order. In opposition, the plaintiffs asserted that this proof was inadequate becausethe Rudin defendants did not provide the alternative information required by the conditionalorder, namely, an affidavit explaining the inability to provide the documents in question. In reply,the Rudin defendants claimed that the lawyer handling the matter had left their employ when theyclosed their Jericho offices and the failure to comply with the court-authorized alternative wasinadvertent. Based on that proof, the court granted the Rudin defendants' motion for leave torenew and reargue and thereupon vacated so much of its prior order dated January 23, 2006 asstruck their answer. The court found that the Rudin defendants' failure to comply with theconditional order was not willful and contumacious, and that the plaintiffs had not beenprejudiced by the delay in complying with discovery.
Sound jurisprudential principles underlie our determination that the Supreme Courtprovidently exercised its discretion in granting the Rudin defendants leave to renew and reargueunder the circumstances of this case. First, there is a strong public policy which favors adetermination on the merits (see Storchevoy v Blinderman, 303 AD2d 672 [2003]).Second, we have consistently held that the Supreme Court is possessed of broad discretion ingranting renewal, and the application of that discretion and the governing principles are to beflexibly applied to advance the interests of justice (see Heaven v McGowan, 40 AD3d 583 [2007]; Lafferty v Eklecco, LLC, 34 AD3d754 [2006]; Petsako v Zweig, 8AD3d 355 [2004]; Gomez vNeedham Capital Group, Inc., 7 AD3d 568 [2004]; Bepat v Chandler, 2 AD3d 764 [2003]; Matter of Orange &Rockland Util. v Assessor of Town of Haverstraw, 304 AD2d 668 [2003]).
In this instance the Supreme Court, in essence, determined that the moving defendants hadsubstantially complied with the conditional order or satisfactorily explained their noncompliance.More significantly, the court, in a well-reasoned decision, concluded that the intent of its priordirectives had been sufficiently satisfied, to wit, that the plaintiffs were provided with sufficientdiscovery to proceed with the prosecution of the action. To second guess what the court [*3]believed to be its original intent and the manner in which it wanteddiscovery to proceed would elevate form over substance and would not further the interests ofjustice.
Notwithstanding the foregoing, and because we find that the plaintiffs were unnecessarilyrequired to make successive motions in an effort to obtain the discovery responses, the SupremeCourt improvidently exercised its discretion in failing to impose any penalty upon the attorneysfor the Rudin defendants. While we agree that the ultimate penalty of striking the pleadings wasnot warranted, we conclude that the Supreme Court should have imposed a penalty upon theattorneys for the Rudin defendants in the sum of $1,500, payable to the plaintiffs (seeDeCintio v Ahmed, 276 AD2d 463 [2000]). Lifson, J.P., Ritter, Santucci and Dillon, JJ.,concur.