Morales v. Zherka

• Decision Date: 08 June 2016
• Citation: Morales v. Zherka, 2016 NY Slip Op 4390, 140 A.D.3d 836, 35 N.Y.S.3d 121 (N.Y. App. Div. 2016)
• Parties: Genaro MORALES, respondent, v. Selim ZHERKA, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 836

35 N.Y.S.3d 121

2016 N.Y. Slip Op. 04390

Genaro MORALES, respondent,

v.Selim ZHERKA, appellant, et al., defendants.

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

June 8, 2016.

Selim Zherka, New Rochelle, NY, appellant pro se.

Gerry E. Feinberg, P.C., White Plains, NY, for respondent.

MARK C. DILLON, J.P., RUTH C. BALKIN, SYLVIA O. HINDS–RADIX, and FRANCESCA E. CONNOLLY, JJ.

In an action for an accounting and to recover damages for, inter alia, fraud and conversion, the defendant Selim Zherka appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Westchester County (Scheinkman, J.), dated January 10, 2014, which, inter alia, granted those branches of the plaintiff's motion which were for leave to amend the complaint to add a cause of action to enforce a settlement agreement, and pursuant to CPLR 3126 to conditionally preclude the defendants from disputing certain testimony by the plaintiff and from offering certain evidence at trial, and denied that branch of his cross motion which was to strike the complaint for failure to comply with discovery.

ORDERED that the order is affirmed insofar as appealed from, with costs.

This action for an accounting and to recover damages for, inter alia, fraud and conversion arises out of certain loans and investments made between the plaintiff and some of the defendants, including the appellant, to partake in certain business opportunities. The defendants assert counterclaims seeking an accounting and to recover damages for, inter alia, breach of contract and fraudulent inducement.

The Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was for leave to amend the complaint to add a cause of action to enforce a settlement agreement allegedly entered into between the appellant and the plaintiff. The proposed amendment was neither palpably insufficient nor patently devoid of merit, and there was no evidence that the amendment would prejudice or surprise the defendants (see Fitzgerald v. City of New York, 119 A.D.3d 520, 521, 987 N.Y.S.2d 877 ).

Contrary to the appellant's contention, the Supreme Court properly granted those branches of the plaintiff's motion which were pursuant to CPLR 3126 to conditionally preclude the defendants from disputing certain testimony by the plaintiff and from offering certain evidence at trial unless the appellant submits to further deposition. 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 (see Isaacs v. Isaacs, 71 A.D.3d 951, 952, 897 N.Y.S.2d 225 ; Pryzant v. City of New York, 300 A.D.2d 383, 750 N.Y.S.2d 779 ; Kingsley v. Kantor, 265 A.D.2d 529, 697 N.Y.S.2d 141 ). “Absent an improvident exercise of discretion, the determination to impose sanctions for conduct that frustrates the purpose of the CPLR should not be...