| Crystal Clear Dev., LLC v Devon Architects of N.Y.,P.C. |
| 2015 NY Slip Op 03121 [127 AD3d 911] |
| April 15, 2015 |
| Appellate Division, Second Department |
[*1]
| Crystal Clear Development, LLC,Appellant, v Devon Architects of New York, P.C., et al.,Respondents. |
Felipe Orner, Flushing, N.Y., for appellant.
Milber Makris Plousadis & Seiden, LLP, Woodbury, N.Y. (Lorin A. Donnellyof counsel), for respondents.
In an action, inter alia, to recover damages for breach of contract and professionalmalpractice, the plaintiff appeals from a judgment of the Supreme Court, Nassau County(Winslow, J.), entered January 25, 2013, which, upon the granting of the defendants'motion pursuant to CPLR 3126, made during the trial, to dismiss the causes of actionalleging breach of contract and professional malpractice for failure to comply with anorder of discovery, is in favor of the defendants and against it dismissing thecomplaint.
Ordered that the judgment is reversed, on the facts and in the exercise of discretion,with costs, the defendants' motion pursuant to CPLR 3126 to dismiss the causes of actionalleging breach of contract and professional malpractice is denied, those causes of actionare reinstated, and the matter is remitted to the Supreme Court, Nassau County, before adifferent Justice, for further proceedings consistent herewith.
In 2005, nonparty Jennifer Capala, her husband, and her mother formed a limitedliability company, Crystal Clear Development, LLC (hereinafter Crystal), to undertake areal estate development project. After Crystal purchased certain real property on FrostStreet in Brooklyn, Capala and her husband consulted with Steven Lane, the owner ofDevon Architects of New York, P.C. (hereinafter Devon). Devon was eventually hired asthe architect for the project, and an agreement to this effect was signed by "Steven LanePresident" and by "Jennifer Capala." Devon, among other things, prepared and filedplans and helped Crystal retain the services of a general contractor.
After certain disputes arose, Crystal commenced the instant action against Devon andLane (hereinafter together the defendants), inter alia, to recover damages for breach ofcontract and professional malpractice. While the defendants, in their answer, generallyasserted that Crystal lacked standing to pursue its claims against them, in a subsequentmotion to dismiss the complaint pursuant to CPLR 3211 (a) and/or for summaryjudgment dismissing certain causes of action, they did not argue that the complaintshould be dismissed for lack of standing. Furthermore, they did not make any suchargument on the appeal from the order which denied part of their motion (see generally Crystal Clear Dev.,LLC v Devon Architects of N.Y., P.C., 97 AD3d 716 [2012]).
[*2] At trial, however, after Crystal introduced intoevidence the underlying contract for architectural services, the Supreme Court, in anoff-the-record conference, sua sponte raised an issue concerning the signatures on thecontract, and apparently questioned whether Crystal was, in fact, the party that hadretained the defendants' services. In response, Crystal's attorney argued, among otherthings, that this issue had never been in dispute. Counsel further indicated that JenniferCapala had assigned the contract to Crystal, and that there was evidence demonstratingthat the defendants were aware of this assignment. When the Supreme Court askedCrystal to produce documents evidencing this "assignment," Crystal's attorney indicatedthat the assignment was done orally and that the defendants had consented. Counselproduced documents indicating that the defendants were aware of the assignment,including invoices sent from Devon to Crystal, but could not produce documentsevidencing the alleged oral assignment, explaining that no such documents existed.
The defendants then moved pursuant to CPLR 3126 to dismiss the remaining causesof action, which were those alleging breach of contract and professional malpractice,based upon the plaintiff's failure to comply with discovery orders. The Supreme Courtgranted the defendants' motion, and a judgment dismissing the complaint was thenentered. Crystal appeals, and we reverse.
The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lieswithin the sound discretion of the trial court (see CPLR 3126 [3]; Kihl vPfeffer, 94 NY2d 118, 122-123 [1999]; Pirro Group, LLC v One Point St., Inc., 71 AD3d 654, 655[2010]; Workman v Town ofSouthampton, 69 AD3d 619, 620 [2010]; McArthur v New York City Hous. Auth., 48 AD3d 431[2008]). However, the drastic remedy of the striking of a pleading pursuant to CPLR3126 is appropriate only where the conduct of the resisting party is shown to be willfuland contumacious (see Holand vCascino, 122 AD3d 575 [2014]; Pirro Group, LLC v One Point St., Inc.,71 AD3d at 655; Workman v Town of Southampton, 69 AD3d at 620; EagleStar Ins. Co. of Am. v Behar, 207 AD2d 326, 326 [1994]). "Willful andcontumacious conduct may be inferred from a party's repeated failure to comply withcourt-ordered discovery, coupled with inadequate explanations for the failures tocomply" (Duncan v Hebb,47 AD3d 871, 871 [2008] [internal quotation marks omitted]; see Workman vTown of Southampton, 69 AD3d at 620; McArthur v New York City Hous.Auth., 48 AD3d at 431).
Here, the record shows that Crystal responded to the defendants' discovery demandsand produced numerous documents as directed in a discovery compliance order. WhileCrystal could not produce documents evidencing the alleged assignment of theunderlying contract for architectural services, it clearly explained that no such documentsexisted because the assignment was done orally. Instead, it produced evidence indicatingthat the defendants were aware of the assignment. Under these circumstances, there wasno showing of a pattern of willful failure to respond to discovery demands or complywith disclosure orders, so as to justify dismissing the complaint (see Holand v Cascino, 122AD3d 575 [2014]; Matterof Blauman-Spindler v Blauman, 68 AD3d 1105, 1107 [2009]; Diel v Rosenfeld, 12 AD3d558, 559 [2004]). In this regard, we note that an assignment may be made by oralcommunication and does not have to be supported by consideration (see AmericanBanana Co. v Venezolana Internacional De Aviacion S.A. [VIASA], 67 AD2d 613,614 [1979], affd 49 NY2d 848 [1980]). Accordingly, the Supreme Courtimprovidently exercised its discretion in granting the defendants' motion pursuant toCPLR 3126 to dismiss the causes of action alleging breach of contract and professionalmalpractice.
The defendants argue, alternatively, that the causes of action alleging breach ofcontract and professional malpractice should have been dismissed for lack of standing.The defendants, however, waived this defense by not moving on these grounds in theirprior motion to dismiss the complaint pursuant to CPLR 3211 (a) and/or for summaryjudgment dismissing certain causes of action, by not raising this issue in the prior appealto this Court, and by otherwise actively participating in this litigation for several yearswithout raising any such concern (see CPLR 3211 [e]; City of New York vState of New York, 86 NY2d 286, 292 [1995]; Reich v Wolf & Fuhrman, P.C., 36 AD3d 885, 887[2007]; Matter of Fastag v Chemical Bank, 242 AD2d 445, 446 [1997]; see generally Wells Fargo BankMinn., N.A. v Mastropaolo, 42 AD3d 239, 242 [2007]).
Crystal's remaining contentions are without merit. Rivera, J.P., Austin, Roman andBarros, JJ., concur.