Allstate Ins. Co. v. Buziashvili

• Decision Date: 25 March 2010
• Citation: 897 N.Y.S.2d 88,71 A.D.3d 571
• Parties: ALLSTATE INSURANCE COMPANY, et al., Plaintiffs-Respondents, v. Alex BUZIASHVILI, Defendant-Appellant, Numerous Others, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

897 N.Y.S.2d 88
71 A.D.3d 571

ALLSTATE INSURANCE COMPANY, et al., Plaintiffs-Respondents,
v.
Alex BUZIASHVILI, Defendant-Appellant,
Numerous Others, et al., Defendants.

Supreme Court, Appellate Division, First Department, New York.

March 25, 2010.

897 N.Y.S.2d 88

The Law Office of David A. Hoines, P.C., Brooklyn (Lawrence J. Eisenberg of counsel), for appellant.

Stern & Montana, LLP, New York (Daniel S. Marvin of counsel), for respondents.

897 N.Y.S.2d 89

GONZALEZ, P.J., MOSKOWITZ, RICHTER, ROMÁN, JJ.

71 A.D.3d 571

Order, Supreme Court, New York County (Barbara R. Kapnick,

71 A.D.3d 572

J.), entered December 17, 2008, which granted plaintiffs' motion to strike defendant Alex Buziashvili's answer and for a default judgment against him, unanimously reversed, on the law and the facts, without costs, the answer reinstated, and the matter remanded to the IAS court for consideration, after affording the parties an opportunity to be heard, of such penalty less than striking the answer as the court deems just.

To the extent the court believed it was constrained by the doctrine of law of the case to strike defendant's answer upon his failure to comply with a prior discovery order, this was error. That doctrine does not apply to discretionary rulings such as case management decisions ( Brothers v. Bunkoff Gen. Contrs., 296 A.D.2d 764, 765, 745 N.Y.S.2d 284 [2002] ). Moreover, the prior order did not direct, or even suggest, that defendant's answer be stricken in the event of noncompliance.

Nonetheless, the record shows that defendant's response to plaintiffs' discovery notice and court orders has been inexcusably lax ( see Figdor v. City of New York, 33 A.D.3d 560, 823 N.Y.S.2d 385 [2006] ). Plaintiffs first requested the patient files in dispute in a discovery notice dated August 2004. Although defendant indicated, in his March 2005 response, that he would produce any such responsive documents, he failed to do so for several years. In September 2007, in a subsequent discovery response, defendant indicated that the records were in his possession at a warehouse in Brooklyn, though he did not actually produce them at that time.

At a November 27, 2007 conference, the court ordered defendant to produce the records. In January 2008, defendant granted plaintiffs access to the warehouse where the files were kept. This access, however, was not meaningful because the records were intermixed among hundreds of boxes of nonresponsive and irrelevant documents. Plaintiffs...