| Rosado v Edmundo Castillo Inc. |
| 2008 NY Slip Op 06623 [54 AD3d 278] |
| August 19, 2008 |
| Appellate Division, First Department |
| Wilfredo Rosado, Individually and Derivatively as a Shareholder ofCastillo Rosado, Inc., Edmundo Castillo, LLC, Edmundo Castillo International, S.r.l.,Appellant, v Edmundo Castillo Inc. et al., Respondents. |
—[*1] Edward W. Hayes, P.C., New York (Edward W. Hayes of counsel), for Edmundo Castilloand Edmundo Castillo Inc., respondents. Harvey & Hackett, New York (Thomas Harvey of counsel), for Money Tree Inc., B & DFinancial Strategies, Inc. and Denise Cassano, respondents. McAloon & Friedman, P.C., New York (Timothy J. O'Shaughnessy of counsel), forMcAloon & Friedman, P.C., respondent pro se.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered June 12, 2006,which (1) denied that part of plaintiff Wilfredo Rosado's motion for contempt against alldefendants except Edmundo Castillo for events occurring up to November 4, 2004, andcontinued the motion against all defendants for all other periods of time, (2) denied that part ofthe motion seeking sanctions against defendants, and (3) denied that part of the motion seekingdiscovery sanctions against defendants with leave to renew, unanimously modified, on the law,the branch of the motion seeking contempt against Edmundo Castillo Inc., Money Tree Inc., B &D Financial Strategies, Inc. and Denise Cassano for events that occurred up to November 4, 2004reinstated, and otherwise affirmed, without costs, and the matter remanded for furtherproceedings. Order, same court and Justice, entered April 18, 2007, which, to the extentappealable, denied plaintiff's motion to renew his prior motion, unanimously affirmed, withoutcosts.
The IAS court improperly denied that part of plaintiff's initial motion for contempt againstEdmundo Castillo Inc. (ECI), Money Tree Inc., B & D Financial Strategies, Inc. and DeniseCassano for those events occurring between October 4, 2004, when the temporary restrainingorder was issued, and November 4, 2004, the date counsel for defendants Money Tree Inc., B &D Financial Strategies, Inc. and Denise Cassano (the Cassano defendants) appeared in court toaccept service of the restraining order. Even if the Cassano defendants were not served with thetemporary restraining order (TRO) until the later date, the record indicates they had knowledge ofthe terms of the TRO, and thus were not entitled to avoid its effects by failing to appear at theOctober 4 hearing or inquire further about the proceeding (see e.g. Matter of McCormick vAxelrod, 59 NY2d 574, [*2]585 [1983]). To the extent theIAS court denied the motion against ECI for those events occurring up to November 4, themotion should be reinstated, since it is undisputed that ECI was served with the TRO.
The court providently exercised its discretion in determining that plaintiff's motion forcontempt against all defendants with respect to all other periods of time should be tried with thebalance of this action, since the issue of defendants' possible contempt is largely related toplaintiff's action against defendants, and the court was not required to determine the issue prior totrial.
The court also properly denied that part of plaintiff's initial motion for monetary sanctionsagainst defendants. There is no indication defendants or their attorneys intentionally prepared andaltered exhibits (compare Sakow vColumbia Bagel, Inc., 32 AD3d 689 [2006], with 317 W. 87 Assoc. vDannenberg, 159 AD2d 245 [1990], and PDG Psychological, P.C. v State Farm Ins. Co., 9 Misc 3d 172[2005]).
Denial of that branch of plaintiff's initial motion that sought discovery sanctions pursuant toCPLR 3126 with leave to renew was also a proper exercise of discretion. Since plaintiff nevermade a formal discovery request pursuant to CPLR 3120, and defendants have complied withsome informal discovery requests and discovery orders, it cannot be said that the latter's delay indisclosing certain documents was willful or contumacious (see e.g. Guzetti v City of New York, 32 AD3d 234 [2006]).
Plaintiff's motion to renew was properly denied since he failed to offer a reasonable excusefor not presenting the new evidence on the prior motion (CPLR 2221 [e] [3]) when it could havebeen obtained through discovery (see Cohoes Realty Assoc. v Lexington Ins. Co., 266AD2d 11 [1999], lv dismissed 94 NY2d 875 [2000]). To the extent plaintiff seeks toappeal the denial of so much of his motion as sought reargument, that portion of the order is notappealable. Concur—Gonzalez, J.P., Catterson, McGuire and Moskowitz, JJ.