| Mironer v City of New York |
| 2010 NY Slip Op 09894 [79 AD3d 1106] |
| December 28, 2010 |
| Appellate Division, Second Department |
| Victoria Mironer et al., Respondents, v City of New Yorket al., Appellants. (Appeal No. 1.) Victoria Mironer et al., Respondents-Appellants, v City ofNew York et al., Appellants-Respondents. (Appeal Nos. 2 and 3.) |
—[*1] Stuart J. Silverman, Wantagh, N.Y., for respondents in appeal No. 1 andrespondents-appellants in appeal Nos. 2 and 3.
In an action to recover damages for personal injuries, etc., the defendants appeal (1), aslimited by their brief, from so much of an order of the Supreme Court, Kings County (Spodek,J.), dated March 18, 2009, as conditionally granted that branch of the plaintiffs' motion whichwas pursuant to CPLR 3126 to strike their answer unless they produced certain documents withina specified time, (2) from stated portions of an order of the same court dated October 9, 2009,and (3) from stated portions of an amended order of the same court dated October 20, 2009,which, inter alia, in effect, upon reargument, adhered to the original determination in the orderdated March 18, 2009, conditionally granting that branch of the plaintiffs' motion which waspursuant to CPLR 3126 to strike their answer unless they produced certain documents within aspecified time and, in effect, extended the time to produce such documents, and the plaintiffscross-appeal, as limited by their notice of appeal and brief, from stated portions of the order datedOctober 9, 2009, and the amended order dated October 20, 2009, which, inter alia, denied thatbranch of their motion which was for access to and permission to examine and photograph thelocation of the injured plaintiff's accident.
Ordered that the appeal from the order dated March 18, 2009, is dismissed, as the portion ofthe order appealed from was superseded by so much of the amended order dated October 20,2009, as was made, in effect, upon reargument; and it is further,[*2]
Ordered that the appeal and cross appeal from the orderdated October 9, 2009, are dismissed, as that order was superseded by the amended order datedOctober 20, 2009; and it is further,
Ordered that the amended order dated October 20, 2009, is modified, on the facts and in theexercise of discretion, by deleting the provision thereof which, in effect, upon reargument,adhered to the original determination in the order dated March 18, 2009, conditionally grantingthat branch of the plaintiffs' motion which was pursuant to CPLR 3126 to strike the defendants'answer unless they produced certain documents within a specified time and, in effect, extendedthe time to produce such documents, and substituting therefor a provision, upon reargument,vacating the determination in the order dated March 18, 2009, granting that branch of theplaintiff's motion which was pursuant to CPLR 3126 to strike the defendants' answer unless theyproduced certain documents within a specified time, and thereupon denying that branch of theplaintiffs' motion; as so modified, the amended order dated October 20, 2009, is affirmed insofaras appealed and cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The Supreme Court improvidently exercised its discretion in conditionally granting thatbranch of the plaintiffs' motion which was pursuant to CPLR 3126 to strike the defendants'answer. Actions should be resolved on their merits wherever possible (see Denoyelles v Gallagher, 30 AD3d367, 368 [2006]; Simpson v City ofNew York, 10 AD3d 601, 602 [2004]). A court in its discretion may strike the pleadingof a party who "refuses to obey an order for disclosure or willfully fails to disclose informationwhich the court finds ought to have been disclosed" (CPLR 3126). Initially, the affirmation ofgood faith submitted by the plaintiffs' counsel (see 22 NYCRR 202.7 [a] [2]) wasinsufficient, as it did not refer to any communications between the parties that would evince adiligent effort by the plaintiffs to resolve the discovery dispute (see 22 NYCRR 202.7[c]; Natoli v Milazzo, 65 AD3d1309, 1310-1311 [2009]; AmherstSynagogue v Schuele Paint Co., Inc., 30 AD3d 1055, 1056-1057 [2006]). Moreover,here the record supports a finding that the defendants substantially, albeit tardily, complied withcourt-ordered discovery (see ACMEANC Corp. v Read, 55 AD3d 854, 855 [2008]; Myung Sum Suh v Jung Ja Kim, 51 AD3d 883 [2008]; Cambry v Lincoln Gardens, 50 AD3d1081, 1082 [2008]; Resnick vSchwarzkopf, 41 AD3d 573 [2007]).
The Supreme Court did not improvidently exercise its discretion in denying that branch ofthe plaintiffs' motion which was for access to and permission to examine and photograph thelocation of the injured plaintiff's accident. Although CPLR 3101 (a) provides for "full disclosureof all matter material and necessary in the prosecution or defense of an action," unlimiteddisclosure is not required, and supervision of disclosure is generally left to the Supreme Court'sbroad discretion (see Palermo Mason Constr. v Aark Holding Corp., 300 AD2d 460, 461[2002]; Silcox v City of New York, 233 AD2d 494 [1996]). Here, an expert retained bythe plaintiffs had already prepared a report after examining and photographing the accidentlocation approximately one month after the accident occurred. Moreover, at the time theplaintiffs moved for access and permission to conduct a second examination of the accidentlocation, almost three years had elapsed since the date of the accident (see Silcox v City ofNew York, 233 AD2d at 494), and the defendants submitted evidence that the steps onwhich the injured plaintiff allegedly fell had been structurally modified since that date.
The parties' remaining contentions either are without merit, have been rendered academic, orneed not be reached in light of the foregoing. Covello, J.P., Florio, Eng and Chambers, JJ.,concur.