| CDR Cr|feances S.A.S. v Cohen |
| 2009 NY Slip Op 04013 [62 AD3d 576] |
| May 21, 2009 |
| Appellate Division, First Department |
| CDR CrÉances S.A.S., as Successor to Societe de BanqueOccidentale, Respondent, v Maurice Cohen et al., Appellants, et al., Defendants. CDRCrÉances S.A.S., as Successor to Societe de Banque Occidentale, Respondent-Appellant, vLeon Cohen et al., Appellants, et al., Defendants. |
—[*1] Marc Bogatin, New York, for World Business Center, Inc., appellant. Simon & Partners LLP, New York (Bradley D. Simon of counsel), for Robert Maraboeuf,Allegria Acour Aich and Patricia Habib Petetin, appellants. Kellner Herlihy Getty & Friedman, LLP, New York (Douglas A. Kellner of counsel), forCDR CrÉances S.A.S., respondent/appellant.
Judgment, Supreme Court, New York County (Walter B. Tolub, J.), entered August 29,2008, directing defendants Maraboeuf, Aich and Petetin to pay plaintiff $265,865,120.81,unanimously reversed, on the law and the facts, without costs, and vacated. Appeal from order,same court and Justice, entered August 13, 2008, unanimously dismissed, without costs, assubsumed in appeals from ensuing order and judgment. Order, same court and Justice, enteredDecember 1, 2008, to the extent it denied the cross motions of defendants Cohen and Habib, andthe subsequent motion of Maraboeuf, Aich and Petetin, to renew the August 13 order and vacatethe default judgments entered against those defendants by that order, unanimously reversed, onthe law and the facts, without costs, renewal granted, the answers of those parties reinstated, andthe restraining orders, entered December 24, 2008, vacated. Judgments, same court and Justice,entered September 25, 2008, awarding plaintiff $268,067,132.33 and $268,067,157.33 againstdefendant World Business Center, inter alia, unanimously reversed, on the law and the facts,without costs, and vacated. Appeals from orders, same court and Justice, entered January 30,2009, which denied World Business Center's motions to renew or vacate default judgmentsagainst it by order entered August 13, 2008, unanimously dismissed, without costs.
While a court is vested with broad discretion to control its calendar and supervise disclosurein order to facilitate the resolution of cases, and the imposition of sanctions for discoverymisfeasance is generally a matter best left to the trial court's discretion, the IAS courtnonetheless improvidently exercised its discretion in granting default judgments againstdefendants-appellants. In view of the brief period between the first discovery order and thegranting of the defaults (see Castillo v Garzon-Ruiz, 290 AD2d 288 [2002]), themagnitude of the judgments (New York Annual Conference of United Methodist Church vPreusch, 51 AD2d 711, 712 [1976]), and the lack of any specific prejudice to plaintiff (Sosa v Kasim, 48 AD3d 320[2008]), reasonable latitude should have been afforded before imposing the ultimate sanction(see Bassett v Bando Sangsa Co., 103 AD2d 728 [1984]). Moreover, given the swornstatements on behalf of these defendants that their prior counsel had failed to advise them of theneed to appear for depositions, as well as their foreign residence and the facial merit of theirdefenses, the court erred in finding that their failure to comply was willful, contumacious or dueto bad faith (see Weissman v 20 E. 9thSt. Corp., 48 AD3d 242 [2008]).
Plaintiff's contention on cross appeal that the inquest court erred in failing to award itpunitive damages against Maraboeuf, Aich and Petetin is rendered academic by our vacatur ofthat judgment, and in any event is unavailing, since plaintiff failed to present clear, unequivocaland convincing evidence of willful conduct that was morally culpable, or was actuated by eviland reprehensible motives (Munoz v Puretz, 301 AD2d 382, 384-385 [2003]). Theclaimed entitlement to summary judgment is not properly before us, based on plaintiff's limitednotice of appeal, and in any event is without merit (see generally Sadkin v Raskin &Rappoport, 271 AD2d 272, 273 [2000]).[*2]
Our disposition is without prejudice to the imposition ofsuch other sanctions as the court deems appropriate. Concur—McGuire, J.P., Acosta,DeGrasse, Richter and Abdus-Salaam, JJ. [See 2008 NY Slip Op 32352(U).]