| Deutsch v Grunwald |
| 2013 NY Slip Op 06832 [110 AD3d 949] |
| October 23, 2013 |
| Appellate Division, Second Department |
| Yehuda Deutsch, as Administrator of the Estate of JesieDeutsch, Deceased, Respondent, v Cheskel Grunwald et al., Appellants, et al.,Defendants. |
—[*1] Tenenbaum Berger & Shivers, LLP, Brooklyn, N.Y. (Michael Cohen of counsel), forrespondent.
In an action, inter alia, to impose a constructive trust, the defendants CheskelGrunwald, the Estate of Pesy Grunwald, Congregation Bnai Arugath, Habosem Monsey,Inc., and 456-458 Bedford Corp., appeal from (1) an order of the Supreme Court, KingsCounty (Jacobson, J.), dated June 15, 2011, which conditionally granted that branch ofthe plaintiff's motion which was to strike their answer and counterclaim unless theycomplied with an order of the same court dated August 3, 2010, within 30 days of serviceupon them of the order dated June 15, 2011, and (2) an order of the same court dated July17, 2012, which granted that branch of the plaintiff's motion which was to strike theiranswer and counterclaim on the ground that they had not complied with the order datedJune 15, 2011.
Ordered that the order dated June 15, 2011, is reversed, on the law, that branch of theplaintiff's motion which was to strike the answer and counterclaim of the defendantsCheskel Grunwald, the Estate of Pesy Grunwald, Congregation Bnai Arugath, HabosemMonsey, Inc., and 456-458 Bedford Corp. is denied, and the order dated July 17, 2012, isvacated; and it is further,
Ordered that the appeal from the order dated July 17, 2012, is dismissed as academicin light of our determination on the appeal from the order dated June 15, 2011; and it isfurther,
Ordered that one bill of costs is awarded to the defendants Cheskel Grunwald, theEstate of Pesy Grunwald, Congregation Bnai Arugath, Habosem Monsey, Inc., and456-458 Bedford Corp.
The Supreme Court should have denied that branch of the plaintiff's motion whichwas to strike the answer and counterclaim of the defendants Cheskel Grunwald, theEstate of Pesy Grunwald, Congregation Bnai Arugath, Habosem Monsey, Inc., and456-458 Bedford Corp. (hereinafter collectively the appellants). The affirmation of goodfaith submitted by the plaintiff's counsel did not satisfy 22 NYCRR 202.7, as it did notrefer to any communications between the [*2]parties thatwould evince a diligent effort by the plaintiff to resolve the present discovery dispute(see 22 NYCRR 202.7 [c]; Matter of Greenfield v Board of Assessment Review for Town ofBabylon, 106 AD3d 908 [2013]; Yargeau v Lasertron, 74 AD3d 1805 [2010]; Quiroz v Beitia, 68 AD3d957, 960 [2009]; Natoli vMilazzo, 65 AD3d 1309, 1310-1311 [2009]; Chervin v Macura, 28 AD3d 600, 602 [2006]; Hegler vLoews Roosevelt Field Cinemas, 280 AD2d 645 [2001]; Barnes v NYNEX,Inc., 274 AD2d 368 [2000]; Romero v Korn, 236 AD2d 598 [1997]).Accordingly, we reverse the order dated June 15, 2011, deny that branch of the plaintiff'smotion which was to strike the appellants' answer and counterclaim, vacate the orderdated July 17, 2012, and dismiss the appeal from the order dated July 17, 2012, asacademic in light of our determination on the appeal from the order dated June 15, 2011.
The appellants also raise arguments concerning that branch of the plaintiff's motionwhich was to strike their answer and counterclaim on the ground of spoliation. However,the Supreme Court did not determine that branch of the motion. Accordingly, we do notaddress the appellants' arguments regarding that issue, as that branch of the plaintiff'smotion remains pending and undecided (see James v Arango, 72 AD3d 899, 900 [2010]; Fuiaxis v 111 Huron St., LLC,58 AD3d 798, 799-800 [2009]; Katz v Katz, 68 AD2d 536, 542-543[1979]). Rivera, J.P., Lott, Sgroi and Miller, JJ., concur.