| Morales v Zherka |
| 2016 NY Slip Op 04390 [140 AD3d 836] |
| June 8, 2016 |
| Appellate Division, Second Department |
[*1]
| Genaro Morales, Respondent, v Selim Zherka,Appellant, et al., Defendants. |
Selim Zherka, New Rochelle, NY, appellant pro se.
Gerry E. Feinberg, P.C., White Plains, NY, for respondent.
In an action for an accounting and to recover damages for, inter alia, fraud andconversion, the defendant Selim Zherka appeals, as limited by his brief, from statedportions of an order of the Supreme Court, Westchester County (Scheinkman, J.), datedJanuary 10, 2014, which, inter alia, granted those branches of the plaintiff's motionwhich were for leave to amend the complaint to add a cause of action to enforce asettlement agreement, and pursuant to CPLR 3126 to conditionally preclude thedefendants from disputing certain testimony by the plaintiff and from offering certainevidence at trial, and denied that branch of his cross motion which was to strike thecomplaint for failure to comply with discovery.
Ordered that the order is affirmed insofar as appealed from, with costs.
This action for an accounting and to recover damages for, inter alia, fraud andconversion arises out of certain loans and investments made between the plaintiff andsome of the defendants, including the appellant, to partake in certain businessopportunities. The defendants assert counterclaims seeking an accounting and to recoverdamages for, inter alia, breach of contract and fraudulent inducement.
The Supreme Court providently exercised its discretion in granting that branch of theplaintiff's motion which was for leave to amend the complaint to add a cause of action toenforce a settlement agreement allegedly entered into between the appellant and theplaintiff. The proposed amendment was neither palpably insufficient nor patently devoidof merit, and there was no evidence that the amendment would prejudice or surprise thedefendants (see Fitzgerald vCity of New York, 119 AD3d 520, 521 [2014]).
Contrary to the appellant's contention, the Supreme Court properly granted thosebranches of the plaintiff's motion which were pursuant to CPLR 3126 to conditionallypreclude the defendants from disputing certain testimony by the plaintiff and fromoffering certain evidence at trial unless the appellant submits to further deposition.Resolution of discovery disputes and the nature and degree of the penalty to be imposedpursuant to CPLR 3126 are matters within the sound discretion of the motion court (see Isaacs v Isaacs, 71 AD3d951, 952 [2010]; Pryzant v City of New York, 300 AD2d 383 [2002];Kingsley v Kantor, 265 AD2d 529 [1999]). "Absent an improvident exercise ofdiscretion, the determination to impose sanctions for conduct that frustrates the purposeof the CPLR should [*2]not be disturbed" (Lotardo v Lotardo, 31 AD3d504, 505 [2006]). Here, at his deposition, the appellant refused to provide answers toseveral questions based upon his personal knowledge, stating merely that he agreed withthe plaintiff's testimony, and refused to answer other questions, claiming that he wasbound by a confidentiality agreement. The record demonstrates that the appellant's lackof cooperation was willful and contumacious, and thus, the court did not improvidentlyexercise its discretion (see CPLR 3126). Moreover, since the Supreme Court'sorder affords the appellant an opportunity to correct his deposition testimony, theappellant has an opportunity to avoid discovery sanctions (see Isaacs v Isaacs, 71AD3d at 952).
Contrary to the appellant's contention, the Supreme Court properly denied thatbranch of his cross motion which was to strike the complaint based upon the plaintiff'sinvocation of the Fifth Amendment privilege against self-incrimination at his deposition.Specifically, the privilege was invoked with respect to questioning about the subject of acause of action and counterclaim that were subsequently discontinued and, therefore, itdid not prevent the defendants from properly defending the lawsuit (see Laverne vIncorporated Vil. of Laurel Hollow, 18 NY2d 635 [1966]; Miller v United ParcelServ., 143 AD2d 820, 821 [1988]).
The appellant's remaining contention is without merit. Dillon, J.P., Balkin,Hinds-Radix and Connolly, JJ., concur.