| LOP Dev., LLC v ZHL Group, Inc. |
| 2010 NY Slip Op 08711 [78 AD3d 1020] |
| November 23, 2010 |
| Appellate Division, Second Department |
| LOP Development, LLC, Appellant, v ZHL Group, Inc., etal., Respondents, et al., Defendants. |
—[*1] Tsyngauz & Associates, P.C., New York, N.Y. (Michael Treybich of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, aslimited by its brief, from so much an order of the Supreme Court, Kings County (Demarest, J.),dated June 1, 2009, as granted that branch of the motion of the defendants ZHL Group, Inc., andYevgeniy Lvovskity pursuant to CPLR 3126 (3) which was to dismiss the complaint insofar asasserted against them.
Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise ofdiscretion, with costs, and that branch of the motion of the defendants ZHL Group, Inc., andYevgeniy Lvovskity pursuant to CPLR 3126 (3) which was to dismiss the complaint insofar asasserted against them is denied.
The plaintiff's current counsel took over this case in December 2008. In February 2009 theplaintiff substantially complied with the discovery request of the defendants ZHL Group, Inc.,and Yevgeniy Lvovskity (hereinafter together the defendants), by producing 36 out of the 38items requested. The plaintiff claims that the remaining two items are not in its possession.
The Supreme Court improvidently exercised its discretion in granting that branch of thedefendants' motion pursuant to CPLR 3126 (3) which was to dismiss the complaint insofar asasserted against them absent a clear showing that the plaintiff's failure to comply withcourt-ordered disclosure was willful and contumacious (see CPLR 3126; Myung Sum Suh v Jung Ja Kim, 51AD3d 883 [2008]; Manko v LenoxHill Hosp., 44 AD3d 1014 [2007]; Mawson v Historic Props., LLC, 30 AD3d 480, 481 [2006]; Garan v Don & Walt Sutton Bldrs.,Inc., 27 AD3d 521, 523-524 [2006]). The record demonstrates that the plaintiffsubstantially, albeit tardily, complied with outstanding discovery requests (see Myung SumSuh v Jung Ja Kim, 51 AD3d at 883; Manko v Lenox Hill Hosp., 44 AD3d at 1014),and that it was unable to produce certain documents because they were not in its possession (see Maffai v County of Suffolk, 36AD3d 765, 766 [2007]; Euro-Central Corp. v Dalsimer, Inc., 22 AD3d 793, 794 [2005]; Bivona v Trump Mar. Casino HotelResort, 11 AD3d 574 [2004]).
In light of our determination, we need not reach the plaintiff's remaining contention. Fisher,J.P., Florio, Leventhal and Hall, JJ., concur.