| L&L Auto Distribs. & Suppliers Inc. v Auto Collection, Inc. |
| 2011 NY Slip Op 05023 [85 AD3d 734] |
| June 7, 2011 |
| Appellate Division, Second Department |
| L&L Auto Distributors and Suppliers Inc. et al.,Appellants, v Auto Collection, Inc., et al., Respondents. |
—[*1] Grunwald & Seman, P.C., Melville, N.Y. (Karl C. Seman and Barnes & Barnes, P.C. [Leo K.Barnes, Jr.], of counsel), for respondents.
In an action, inter alia, to recover damages for breach of contract and conversion, theplaintiffs appeal from (1) an order of the Supreme Court, Kings County (Demarest, J.), datedApril 7, 2010, which denied their motion to vacate a prior order of the same court dated February24, 2010, granting the defendants' motion to strike the complaint pursuant to CPLR 3126 forwillful failure to provide discovery, upon their failure to oppose the motion and their failure toappear at the call of the calendar, and (2) an order of the same court dated August 11, 2010,which denied their motion, in effect, for leave to reargue their motion to vacate the order datedFebruary 24, 2010.
Ordered that the appeal from the order dated August 11, 2010, is dismissed, without costs ordisbursements, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated April 7, 2010, is reversed, on the facts and in the exercise ofdiscretion, without costs or disbursements, the plaintiffs' motion to vacate the order datedFebruary 24, 2010, is granted, on condition that the plaintiffs pay the sum of $5,000 to thedefendant, and thereupon, the defendants' motion to strike the complaint pursuant to CPLR 3126for willful failure to provide discovery is denied; and it is further,
Ordered that in the event that the plaintiffs do not pay the sum of $5,000 to the defendantswithin 30 days after service of a copy of this decision and order by the defendants upon theplaintiffs, the order dated April 7, 2010, is affirmed.
By preliminary conference order dated July 8, 2009, the Supreme Court directed, inter alia,that all responses to discovery and inspection were to be served by September 15, 2009. InDecember 2009, the defendants moved to strike the complaint pursuant to CPLR 3126 for theplaintiffs' willful failure to respond to their discovery demands. On January 13, 2010, theattorneys for the parties appeared in open court, and the motion was adjourned since theplaintiffs' former attorney had in the interim supplied "almost a thousand pages of documents" todefense counsel. However, the plaintiffs' former attorney neither submitted opposition to themotion to strike nor [*2]appeared in court on the adjourned dateof February 24, 2010. At that time, the Supreme Court stated "[t]his is a default now," and issuedan order dated February 24, 2010 (hereinafter the February 2010 order) granting the defendants'motion to strike the complaint pursuant to CPLR 3126. Thereafter, in an order dated April 7,2010, the Supreme Court denied the plaintiffs' motion to vacate the February 2010 order. Theplaintiffs, inter alia, made another motion to vacate the February 2010 order. In an order datedAugust 11, 2010, the Supreme Court denied the motion, deeming it to be one for leave toreargue.
To prevail on their motion to vacate their default, the plaintiffs were required to demonstrateboth a reasonable excuse for their default in opposing the motion (see CPLR 5015 [a][1]), as well as potentially meritorious opposition to the defendants' CPLR 3126 motion (see Tutt v City of Yonkers, 11 AD3d532 [2004]). Under the circumstances of this case, the plaintiffs established a reasonableexcuse for their default based on their former attorney's law office failure (see CPLR2005; see also Piton v Cribb, 38AD3d 741 [2007]).
The plaintiffs also demonstrated that they had a potentially meritorious opposition to thedefendants' motion, as their delay in fully complying with the defendants' discovery requests wasneither willful nor contumacious (see CPLR 3126; Negro v St. Charles Hosp. & Rehabilitation Ctr., 44 AD3d 727,728 [2007]; Resnick vSchwarzkopf, 41 AD3d 573 [2007]; Prappas v Papadatos, 38 AD3d 871, 872 [2007]; Russo v Tolchin, 35 AD3d 431[2006]). Accordingly, in light of these considerations, and mindful of the strong public policywhich favors resolution of cases on their merits, we conclude that the "drastic remedy" of strikingthe complaint in this case was unwarranted (A.F.C. Enters., Inc. v New York City School Constr. Auth., 33 AD3d737 [2006]; see Lomax v RochdaleVil., Inc., 76 AD3d 999 [2010]).
Nonetheless, the plaintiffs' conduct during discovery cannot be countenanced. Consequently,under all of the facts and circumstances, a monetary sanction in the sum of $5,000 is warranted tocompensate the defendants for the time expended and costs incurred in connection with theplaintiffs' failure to fully and timely comply with discovery (see Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d798 [2010]; Messer v KeyspanEnergy Delivery, Inc., 56 AD3d 738, 738-739 [2008]; Dean v Usine Campagna, 44 AD3d603, 605 [2007]).
The parties' remaining contentions are without merit, or need not be addressed in light of ourdetermination herein. Angiolillo, J.P., Balkin, Leventhal and Sgroi, JJ., concur.