Garan v. Don & Walt Sutton Builders, Inc.

• Citation: 813 N.Y.S.2d 123,27 A.D.3d 521,2006 NY Slip Op 01766
• Decision Date: 14 March 2006
• Docket Number: 2005-04912.,2005-03547.
• Parties: PATRICIA GARAN, Appellant, v. DON & WALT SUTTON BUILDERS, INC., et al., Respondents.
• Court: New York Supreme Court Appellate Division

27 A.D.3d 521

813 N.Y.S.2d 123

2006 NY Slip Op 01766

PATRICIA GARAN, Appellant, v. DON & WALT SUTTON BUILDERS, INC., et al., Respondents.

2005-03547.

2005-04912.

Appellate Division of the Supreme Court of the State of New York, Second Department.

March 14, 2006.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by her brief, (1) from so much of a judgment of the Supreme Court, Dutchess County (Pagones, J.), entered March 3, 2005, as, upon an order of the same court dated January 4, 2005, granting the motion of the

defendant Don & Walt Sutton Builders, Inc., pursuant to CPLR 3126 to impose a sanction upon the plaintiff for failing to comply with disclosure, dismissed the complaint, and (2) from so much of an order of the same court entered April 26, 2005, as denied those branches of her motion which were, in effect, to vacate the judgment, and upon such vacatur, for leave to amend the complaint to add a cause of action pursuant to Debtor and Creditor Law § 276.

Ordered that the judgment entered March 3, 2005 is reversed insofar as appealed from, on the law, without costs or disbursements, the motion of the defendant Don & Walt Sutton Builders, Inc., pursuant to CPLR 3126 to impose a sanction upon the plaintiff for failing to comply with disclosure is denied, the order dated January 4, 2005 is modified accordingly, and the complaint is reinstated as against that defendant on condition that the plaintiff's former attorney, Rudolph Russo, personally pays the sum of $1,500 to the defendant Don & Walt Sutton Builders, Inc., within 30 days after service upon him of a copy of this decision and order; in the event the plaintiff's former attorney fails or refuses to pay, the appellant may personally pay the sum of $1,500 to the defendant Don & Walt Sutton Builders, Inc., within 60 days after service upon her of a copy of this decision and order; in the event the condition is not complied with, then the judgment is affirmed insofar as appealed from, with costs; and it is further,

Ordered that the appeal from the order entered April 26, 2005 is dismissed as academic, without costs or disbursements.

The plaintiff entered into a contract with the defendant Don & Walt Sutton Builders, Inc. (hereinafter Sutton Builders), for the construction of a single-family home. She commenced this action in November 2001, inter alia, to recover damages for breach of contract and negligence. In October 2004 Sutton Builders moved pursuant to CPLR 3126 to impose a sanction upon the plaintiff for failing to comply with disclosure. The Supreme Court granted the motion and dismissed the complaint. Thereafter, the plaintiff, represented by a new attorney, moved, in effect, to vacate the judgment, and upon such vacatur, for leave to amend her complaint to add a cause of action pursuant to Debtor and Creditor Law § 276. In support of her motion, the plaintiff asserted that her former attorney, Rudolph Russo, provided her with a copy of the discovery demands when they were originally received in 2002, and told her that "it was not necessary that [she] provide him with copies of documents responsive to the demands, but that [she] should assemble them and he would let [her] know when to provide him with copies." However, Russo did not keep her abreast of the various court conferences or inform her that a motion to impose a sanction had been made....