| Mikhailov v Katan |
| 2014 NY Slip Op 02415 [116 AD3d 744] |
| April 9, 2014 |
| Appellate Division, Second Department |
| Michael Mikhailov, Respondent, v Itzhak Katan,Appellant, et al., Defendants. |
—[*1] Natia Pavel, P.C., Forest Hills, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of contract and fraud, thedefendant Itzhak Katan appeals, as limited by his brief, from so much of an order of theSupreme Court, Westchester County (Connolly, J.), entered April 10, 2012, as grantedthat branch of the plaintiff's motion which was to preclude him from introducing anydocuments pertaining to his personal finances that had been requested but not produced,to the extent of precluding him from introducing any such documents that had not beenproduced as of April 9, 2012, and testimony relating to such documents.
Ordered that the order is affirmed insofar as appealed from, with costs.
Pursuant to CPLR 3126, a court may impose discovery sanctions, including thepreclusion of evidence, where a party "refuses to obey an order for disclosure or wilfullyfails to disclose information which the court finds ought to have been disclosed." "Thenature and degree of a penalty to be imposed under CPLR 3126 for discovery violationsis addressed to the court's discretion" (Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 738[2012]). Preclusion may "be appropriate where the offending party's lack of cooperationwith disclosure was willful, deliberate, and contumacious" (Arpino v F.J.F. & Sons Elec. Co.,Inc., 102 AD3d 201, 210 [2012] [internal quotation marks omitted]).
Here, the plaintiff made a clear showing that the defendant Itzhak Katan repeatedlyfailed to comply with discovery requests pertaining to Katan's personal finances,although he substantially complied with other requests. Further, Katan's willful andcontumacious conduct in failing to meaningfully respond to those demands may bereasonably inferred from the record. Contrary to Katan's contention, the record does notreflect that he was at all times ready, willing, and able to provide the financial documentssubject to a confidentiality agreement. Instead, after the plaintiff initially requested thedocuments, Katan changed his position on numerous occasions with respect to whetherhe would provide them to the plaintiff under any circumstances, and requested aconfidentiality agreement for the first time only after the plaintiff moved for discoverysanctions. Accordingly, the Supreme Court did not improvidently exercise its discretionin granting that branch of the plaintiff's motion which was to preclude Katan fromintroducing any documents pertaining to his personal finances that had been requestedbut not produced, to the extent of precluding him from introducing any such documentsthat had not been produced as of April 9, 2012, and testimony [*2]relating to such documents (see Aha Sales, Inc. v Creative BathProds., Inc., 110 AD3d 1019, 1019-1020 [2013]). Mastro, J.P., Chambers,Austin and Miller, JJ., concur.