| De Socio v 136 E. 56th St. Owners, Inc. |
| 2010 NY Slip Op 05330 [74 AD3d 606] |
| June 17, 2010 |
| Appellate Division, First Department |
| Bridget De Socio, Respondent, v 136 East 56th StreetOwners, Inc., et al., Appellants. |
—[*1] Law Office of Michael K. O'Donnell, White Plains (Michael K. O'Donnell of counsel), forrespondent.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered on or aboutFebruary 19, 2009, which, to the extent appealed from, granted plaintiff's motion pursuant toCPLR 3126 to strike the answer for failure to provide discovery, unanimously reversed, on thelaw and the facts, without costs, the motion denied, the answer reinstated, and the matterremanded for consideration, after affording the parties an opportunity to be heard, of such lesserpenalty than striking the answer, as the court deems just.
The preliminary conference in this matter was held on April 25, 2007, and plaintiff's firstdocument request is dated August 7, 2007. During 2007 and 2008, several conferences were heldand defendants were directed to respond to plaintiff's discovery demands. In March 2008,plaintiff sent a second document demand requesting, among other things, all minutes of theboard concerning this litigation and all documents concerning this litigation in the custody orcontrol of the current management company for the building. In June 2008, plaintiff's counselwrote to defendants' counsel noting that defendants had failed to comply with the court'sdiscovery orders. The letter apprised counsel that a motion seeking appropriate sanctions wouldbe filed unless defendants complied with all court orders immediately. On July 30, 2008,plaintiff's counsel again wrote to defendants' counsel, noting that there had been no response tothe June letter and enclosing a draft notice of motion. On July 31, 2008, defendants' counselresponded that there would be a complete response to the letter by August 8 and that there wasno need for plaintiff to make a motion. On September 12, 2008, after failing to receive therequested discovery, plaintiff's counsel again wrote to defendants' attorney indicating thatplaintiff intended to file a sanctions motion. It is that motion, which sought either striking of theanswer or a conditional order of preclusion, which is the subject of this appeal.
In opposition to the motion, defendants provided an affidavit from Stuart Smolar, the currentproperty manager of defendant 136 East 56th Street, who explained that after receiving copies ofplaintiff's document demands on October 28, 2008, he and another property manager searchedvarious files and document indexes but were unable to locate any responsive materials.Defendant Heron no longer exists as an operating company; its assets were purchased by [*2]Halstead Management Company.[FN*]After the motion was filed, defendants' counsel sent a subpoena to Halstead seeking documentsand materials related to the subject of this litigation. In response, counsel received an affidavitfrom Charles Mintz, an employee of Halstead, who explained that Halstead had no recordsregarding the subject of this litigation. That affidavit was provided to the court as part ofdefendants' response to the sanctions motion.
Although the determination of an appropriate sanction pursuant to CPLR 3126 lies in thetrial court's discretion and should not be set aside absent a clear abuse of discretion (Arts4All, Ltd. v Hancock, 54 AD3d286, 286 [2008], affd 12 NY3d 846 [2009], cert denied 559 US —,130 S Ct 1301 [2010]), here the trial court made no findings of fact and offered no explanationfor its decision to strike the answer. Thus, no basis exists for deferring to the trial court'sdetermination.
Although defendants now claim that the documents cannot be located because of the changein the building's management, they offer no credible reason for their failure to provide thissimple explanation to either plaintiff or the court until after the sanctions motion was filed. Therecord does not show that defendants ever alerted the court to the possibility that they could notlocate the records, despite the fact that the court kept extending their deadline to produce them.The affidavits from Mintz and Smolar do not show that any search was conducted during theyear and a half this case was pending. It is noteworthy that defendants' submissions do notexplain whether the records ever existed, but merely state that no records could be found as oflate October 2008. Moreover, the opposition papers are silent as to whether board minutes from2003, among the items requested, are retained by anyone currently on the board or by corporatecounsel.
Defendants' behavior in this matter cannot be excused. Their exhibited pattern ofnoncompliance and their failure to account for their actions over a period of a year and a halfwarrant a penalty pursuant to CPLR 3126 (see Figdor v City of New York, 33 AD3d 560 [2006]). Althoughdefendants try to justify their own inaction by focusing on plaintiff's alleged discovery delays,defendants were not entitled to ignore the court's orders merely because plaintiff may not havebeen deposed.
Nonetheless, as this Court recently noted, "mere lack of diligence in furnishing some of therequested materials may not be grounds for striking a pleading" (Elias v City of New York, 71 AD3d506, 507 [2010]). "While the conduct of defendant[s] here was unsupportable, we cannotfind that it rose to the level that would justify striking the answer" (Virola v New York CityHous. Auth., 185 AD2d 122, 124 [1992]), particularly in light of the fact that defendants,albeit belatedly, have now come forward with an explanation for the nonproduction. We believethat some lesser sanction, monetary or otherwise, is warranted, and we remand the matter for the[*3]court to determine the appropriate sanction (see Allstate Ins. Co. v Buziashvili, 71AD3d 571 [2010]; see also Elias v City of New York, 71 AD3d at 507).Concur—Saxe, J.P., Catterson, Renwick, Richter and Abdus-Salaam, JJ.
Footnote *: Plaintiff disputes this claim,noting that filings with the State suggest that Heron is an active corporation.