| ACME ANC Corp. v Read |
| 2008 NY Slip Op 08283 [55 AD3d 854] |
| October 28, 2008 |
| Appellate Division, Second Department |
| ACME ANC Corp., Appellant, v George Read et al.,Respondents, et al., Defendant. |
—[*1] Robert B. Marcus, P.C., New City, N.Y., for respondents.
In an action, inter alia, to recover damages for breach of contract and on an account stated, theplaintiff appeals, as limited by its brief, from (1) so much of an order of the Supreme Court,Westchester County (Liebowitz, J.), entered October 24, 2007, as granted those branches of themotion of the defendants George Read and Jayne Read which were, in effect, for leave to enter ajudgment in favor of those defendants and against it on the issue of liability on the counterclaims uponthe plaintiff's failure to serve a timely reply thereto, and pursuant to CPLR 3126 to strike the complaintinsofar as asserted against them, and (2) so much of an order of the same court entered January 31,2008, as, upon reargument, adhered to its original determination.
Ordered that the appeal from the order entered October 24, 2007, is dismissed, without costs ordisbursements, as that order was superseded by the order entered January 31, 2008, made uponreargument; and it is further,
Ordered that the order entered January 31, 2008, is modified, on the facts and in the exercise ofdiscretion, by deleting the provision thereof which, upon reargument, adhered to so much of the originaldetermination in the order entered October 24, 2007, as granted that branch of the motion which wasto strike the complaint, and substituting therefor a provision, upon reargument, vacating so much of theorder entered October 24, 2007, as granted that branch of the motion which was to strike thecomplaint and thereupon denying that branch of the motion; as so modified, the [*2]order entered January 31, 2008, is affirmed insofar as appealed from,without costs or disbursements.
The Supreme Court providently exercised its discretion in granting that branch of the respondents'motion which was, in effect, for leave to enter a judgment in their favor and against the plaintiff on theissue of liability on their counterclaims based upon the plaintiff's failure to serve a timely reply. Theplaintiff failed to demonstrate a reasonable excuse for the two-year delay in serving a reply to thecounterclaims (see Twersky v Kasaks,24 AD3d 657, 658 [2005]; Bensimon v Fishman, 242 AD2d 551 [1997]; cf. MMG Design, Inc. v Melnick, 35 AD3d823 [2006]).
The Supreme Court, however, upon reargument, improvidently exercised its discretion in grantingthat branch of the respondents' motion which was to strike the complaint absent a clear showing thatthe plaintiff's failure to comply with disclosure was willful and contumacious (see CPLR 3126;Manko v Lenox Hill Hosp., 44 AD3d1014 [2007]; Russo v Tolchin, 35AD3d 431, 434 [2006]; Kuzmin vVisiting Nurse Serv. of N.Y., 22 AD3d 643 [2005]). Here, the plaintiff substantially, albeittardily, complied with the respondents' discovery demands by serving a verified bill of particulars and aresponse to the respondents' request for discovery and inspection (see Resnick v Schwarzkopf, 41 AD3d 573 [2007]; Mawson v Historic Props., LLC, 30 AD3d480 [2006]; Little v Long Is. Jewish Med. Ctr., 231 AD2d 496 [1996]). Furthermore,there was no affirmation that the respondents' attorney had conferred with the plaintiff's attorney in agood-faith effort to resolve the issue regarding the plaintiff's failure to comply with disclosure (see22 NYCRR 202.7 [a] [2]; Walter B.Melvin, Architects, LLC v 24 Aqueduct Lane Condominium, 51 AD3d 784 [2008]; Tine v Courtview Owners Corp., 40 AD3d966, 967 [2007]). Rivera, J.P., Florio, Angiolillo, McCarthy and Chambers, JJ., concur.