Hasan v. 18-24 Luquer St. Realty, LLC

• Decision Date: 02 November 2016
• Citation: Hasan v. 18-24 Luquer St. Realty, LLC, 2016 NY Slip Op 7160, 144 A.D.3d 631, 45 N.Y.S.3d 98 (N.Y. App. Div. 2016)
• Parties: Gamal HASAN, plaintiff, v. 18–24 LUQUER STREET REALTY, LLC, defendant third-party plaintiff/third third-party plaintiff-respondent; AK Concrete, Inc., third-party defendant/ second third-party plaintiff/ third third-party defendant-appellant; A.A.D. Construction Corp., second third-party defendant/third third-party plaintiff-respondent; Bricolage Architecture & Design, PLLC, et al., second third-party defendants/third third-party defendants-respondents, et al., third-party/third third-party defendant. (and another title).
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 631

45 N.Y.S.3d 98

2016 N.Y. Slip Op. 07160

Gamal HASAN, plaintiff,

v.18–24 LUQUER STREET REALTY, LLC, defendantthird-party plaintiff/third third-party plaintiff-respondent;

AK Concrete, Inc., third-party defendant/ second third-party plaintiff/ third third-party defendant-appellant;

A.A.D. Construction Corp., second third-party defendant/third third-party plaintiff-respondent;

Bricolage Architecture & Design, PLLC, et al., second third-party defendants/third third-party defendants-respondents, et al., third-party/third third-party defendant.

(and another title).

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

Nov. 2, 2016.

Farber Brocks & Zane LLP, Garden City, NY (Tracy L. Frankel of counsel), for third-party defendant/second third-partyplaintiff/third third-party defendant-appellant, AK Concrete, Inc.

Georgaklis & Mallas, PLLC, Brooklyn, NY (Michele V. Ficarra of counsel), for defendantthird-partyplaintiff/third third-partyplaintiff-respondent, 18–24 Luquer Street Realty, LLC, and second third-party defendant/third third-partyplaintiff-respondent, A.A.D. Construction Corp.

Goldberg & Rimberg PLLC, New York, NY (Steven A. Weg of counsel), for second third-party defendant/third third-party defendants-respondentsBricolage Architecture & Design, PLLC, Bricolage Design Association, and Bricolage Designs.

MARK C. DILLON, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, and VALERIE BRATHWAITE NELSON, JJ.

In an action to recover for damage to property, AK Concrete, Inc., appeals, as limited by its brief, (1) from so much of an order of the Supreme Court, Kings County(Schmidt, J.), dated February 25, 2014, as granted the motion of 18–24 Luquer Street Realty, LLC, and A.A.D. Construction Corp., and the separate motion of Bricolage Architecture & Design, PLLC, Bricolage Design Association, and Bricolage Designs, which was pursuant to CPLR 3126 to the extent of precluding it from offering any testimony or evidence at trial, and (2) from so much of an order of the same court(Knipel, J.), dated August 7, 2014, as denied that branch of its motion which was pursuant to CPLR 5015 to vacate the February 25, 2014, order and, in effect, upon reargument, adhered to its original determination in the February 25, 2014, order.

ORDERED that the appeal from the order dated February 25, 2014, is dismissed, as that order was superseded by the order dated August 7, 2014, made, in effect, upon reargument; and it is further,

ORDERED that the order dated August 7, 2014, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

"If a party‘refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed ... the court may make such orders with regard to the failure or refusal as are just’ "(Smith v. County of Nassau,138 A.D.3d 726, 728, 30 N.Y.S.3d 143, quotingCPLR 3126 )."Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court"(Morales v. Zherka,140 A.D.3d 836, 836–837, 35 N.Y.S.3d 121;seeRichards v. RP Stellar Riverton, LLC,136 A.D.3d 1011, 1011, 25 N.Y.S.3d 346 )." ‘To invoke the drastic remedy of preclusion, the Supreme Court must determine that the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious' "(Richards v. RP Stellar Riverton, LLC,136 A.D.3d at 1011, 25 N.Y.S.3d 346, quotingPryzant v. City of New York,300 A.D.2d 383, 383, 750 N.Y.S.2d 779;seeBrinson v. Pod,129 A.D.3d 1005, 1009, 12 N.Y.S.3d 201;Scardino v. Town of Babylon,248 A.D.2d 371, 669 N.Y.S.2d 655 )." ‘The willful and contumacious character of a party's conduct may be inferred from the party's repeated failure to comply with court-ordered discovery, and the absence of any reasonable excuse for those failures, or a failure to comply with court-ordered discovery over an extended period of time’ " (Richards v. RP Stellar Riverton, LLC,136 A.D.3d at 1011, 25 N.Y.S.3d 346, quoting New York Timber, LLC v. Seneca Cos.,

133 A.D.3d 576, 577, 19 N.Y.S.3d 78;seeVitolo v. Suarez,130 A.D.3d 610, 612, 13...