Hameroff v. Plank, LLC

• Decision Date: 11 July 2013
• Citation: 970 N.Y.S.2d 102,108 A.D.3d 908,2013 N.Y. Slip Op. 05271
• Parties: HAMEROFF AND SONS, LLC, Respondent, v. PLANK, LLC, Appellant.
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 908
970 N.Y.S.2d 102
2013 N.Y. Slip Op. 05271

HAMEROFF AND SONS, LLC, Respondent,
v.
PLANK, LLC, Appellant.

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

July 11, 2013.

[970 N.Y.S.2d 103]

Lance R. Hartwich, Schenectady, for appellant.

Law Office of John Hoggan, PLLC, Albany (John D. Hoggan Jr. of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, McCARTHY and GARRY, JJ.

McCARTHY, J.

[108 A.D.3d 908]Appeal from an order of the Supreme Court (Lynch, J.), entered August 13, 2012 in Albany County, which partially granted plaintiff's motion to, among other things, preclude certain evidence.

The parties entered into a contract for defendant to construct and renovate a facility owned by plaintiff. After a dispute arose, defendant filed a mechanic's lien against the property. In May 2009, the parties negotiated a stipulation of settlement requiring plaintiff to pay defendant $105,000 in satisfaction of its obligations under the contract and requiring defendant to, among other things, complete all items on a punch list. It appears that neither party fully performed in accordance with the stipulation. In July 2009, plaintiff sent a letter to defendant's contract administrator, Carl Holsberger, informing him that counsel had been retained to commence litigation. In March 2010, defendant commenced an action in Schenectady City Court alleging breach of the settlement agreement. Plaintiff later commenced an action in Supreme Court alleging, among other things, breach of the original contract and negligent construction. Supreme Court consolidated the two actions and provided a discovery schedule. Defendant failed to respond to plaintiff's December 2010 discovery demands and eventually moved for summary judgment. Plaintiff cross-moved to compel discovery ( seeCPLR 3124). In August 2011, Supreme Court denied defendant's motion for summary judgment, finding that the settlement agreement was ambiguous, and granted plaintiff's cross motion, directing

[970 N.Y.S.2d 104]

defendant to serve discovery responses within 20 days.

Defendant did not timely respond, so Supreme Court set another deadline. Defendant again failed to timely respond, but finally allowed plaintiff to review documents in January 2012; [108 A.D.3d 909]still, no written response to the demands was provided. Plaintiff complained about irregularities and missing documents, but received no response from defendant. In March 2012, 15 months after discovery demands were initially served, plaintiff moved pursuant to CPLR 3126 for preclusion and issue resolution. After giving the parties extensive opportunities to submit additional papers,...