| Bender, Jenson & Silverstein, LLP v Walter |
| 2009 NY Slip Op 08572 [67 AD3d 839] |
| November 17, 2009 |
| Appellate Division, Second Department |
| Bender, Jenson & Silverstein, LLP,Respondent, v Margarita T. Walter, Appellant. |
—[*1] Steinberg & Cavaliere, LLP, White Plains, N.Y. (Robert P. Pagano of counsel), forrespondent.
In an action to recover fees for legal services, the defendant appeals (1), as limited by herbrief, from so much of an order of the Supreme Court, Westchester County (Nicolai, J.), datedJune 6, 2008, as denied that branch of her motion which was for assignment of counsel, (2), aslimited by her brief, from so much of an order of the same court (Nicolai, J.), also dated June 6,2008, as, in effect, upon vacating her default in opposing the plaintiff's motion to preclude herfrom introducing certain documents at trial, conditionally granted the plaintiff's motion, and (3)from an order of the same court (Colabella, J.) dated July 10, 2008, which, inter alia, denied hermotion to quash certain trial subpoenas.
Ordered that on the Court's own motion, the appeal from the first order dated June 6, 2008 isdismissed, on the ground that no appeal lies as of right from an order that does not affect asubstantial right of the appealing party (see CPLR 5701 [a] [2] [v]), and we decline togrant leave to appeal; and it is further,
Ordered that the second order dated June 6, 2008 is affirmed insofar as appealed from; and itis further,
Ordered that the order dated July 10, 2008 is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff sought to recover its fee for legal services provided to the defendant, whoasserted counterclaims sounding in legal malpractice. In response to the plaintiff's requests forthe production of documents, the defendant claimed to be without financial resources tophotocopy the requested documents and refused to produce them, in spite of the plaintiff's offerto bear the cost of photocopying.[*2]
Since the defendant failed to establish that she made anyeffort to comply with the plaintiff's repeated discovery requests, the Supreme Court properlyconsidered her lack of cooperation to be willful and contumacious, and properly conditionallygranted the plaintiff's motion to preclude her from introducing the requested documents inevidence (see Kihl v Pfeffer, 94 NY2d 118 [1999]; D'Aloisi v City of New York, 7 AD3d 750 [2004]; Brooks v City of New York, 6 AD3d565 [2004]; Donovan v City of New York, 239 AD2d 461 [1997]; cf. Scardino vTown of Babylon, 248 AD2d 371 [1998]).
In light of the defendant's noncompliance with discovery, the Supreme Court properlydenied her motion to quash certain subpoenas which had been served on nonparty witnesses, onthe basis that the information sought was otherwise unobtainable (see Hamilton v Touseull, 48 AD3d520 [2008]; Matter of Validation Review Assoc. [Berkun—Schimel], 237AD2d 614 [1997]; cf. People v Marin, 86 AD2d 40 [1982]).
The defendant's remaining contentions are without merit. Skelos, J.P., Eng, Austin andRoman, JJ., concur.