Mironer v. City of N.Y.

• Decision Date: 28 December 2010
• Citation: 915 N.Y.S.2d 279,79 A.D.3d 1106
• Parties: Victoria MIRONER, et al., respondents, v. CITY OF NEW YORK, et al., appellants. (Appeal No. 1) Victoria Mironer, et al., respondents-appellants, v. City of New York, et al., appellants-respondents. (Appeal Nos. 2 and 3)
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 279

79 A.D.3d 1106

Victoria MIRONER, et al., respondents,

v.CITY OF NEW YORK, et al., appellants. (Appeal No. 1)

Victoria Mironer, et al., respondents-appellants,

v.City of New York, et al., appellants-respondents. (Appeal Nos. 2 and 3)

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

Dec. 28, 2010.

Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York, N.Y. (Vanessa M. Corchia of counsel), for appellants in Appeal No. 1 and appellants-respondents in Appeal Nos. 2 and 3.

Stuart J. Silverman, Wantagh, N.Y., for respondents in Appeal No. 1 and respondents-appellants in Appeal Nos. 2 and 3.

JOSEPH COVELLO, J.P., ANITA R. FLORIO, RANDALL T. ENG, and CHERYL E. CHAMBERS, JJ.

In an action to recover damages for personal injuries, etc., the defendants appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Kings County (Spodek, J.), dated March 18, 2009, as conditionally granted that branch of the plaintiffs' motion which was pursuant to CPLR 3126 to strike their answer unless they produced certain documents within a specified time, (2) from stated portions of an order of the same court dated October 9, 2009, and (3) from stated portions of an amended order of the same court dated October 20, 2009, which, inter alia, in effect, upon reargument, adhered to the original determination in the order dated March 18, 2009, conditionally granting that branch of the plaintiffs' motion which was pursuantto CPLR 3126 to strike their answer unless they produced certain documents within a specified time and, in effect, extended the time to produce such documents, and the plaintiffs cross-appeal, as limited by their notice of appeal and brief, from stated portions of the order dated October 9, 2009, and the amended order dated October 20, 2009, which, inter alia, denied that branch of their motion which was for access to and permission to examine and photograph the location of the injured plaintiff's accident.

ORDERED that the appeal from the order dated March 18, 2009, is dismissed, as the portion of the order appealed from was superseded by so much of the amended order dated October 20, 2009, as was made, in effect, upon reargument; and it is further,

ORDERED that the appeal and cross appeal from the order dated October 9, 2009, are dismissed, as that order was superseded by the amended order dated October 20, 2009; and it is further,

ORDERED that the amended order dated October 20, 2009, is modified, on the facts and in the exercise of discretion, by deleting the provision thereof which, in effect, upon reargument, adhered to the original determination in the order dated March 18, 2009, conditionally granting that branch of the plaintiffs' motion which was pursuant to CPLR 3126 to strike the defendants' answer unless they produced certain documents within a specified time and, in effect, extended the time to produce such documents, and substituting therefor a provision, upon reargument, vacating the determination in the order dated March 18, 2009, granting that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the defendants' answer unless they produced certain documents within a specified time, and thereupon denying that branch of the plaintiffs' motion; as so modified, the amended order dated October 20, 2009, is affirmed insofar as appealed and cross-appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The Supreme Court improvidently exercised its discretion in conditionally granting that branch of the plaintiffs' motion which was pursuant to CPLR 3126 to strike the defendants' answer. Actions should be resolved on their merits wherever possible ( see Denoyelles v. Gallagher, 30 A.D.3d 367, 368, 817 N.Y.S.2d 318; Simpson v. City of New York, 10 A.D.3d 601, 602, 781 N.Y.S.2d 683). A court in its discretion may strike the pleading of aparty who "refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126). Initially, the affirmation of...