De Socio v. 136 East 56th St. Owners, Inc.

• Court: New York Supreme Court Appellate Division
• Writing for the Court: SAXE
• Citation: 903 N.Y.S.2d 45,74 A.D.3d 606
• Parties: Bridget DE SOCIO, Plaintiff-Respondent, v. 136 EAST 56TH STREET OWNERS, INC., et al., Defendants-Appellants.
• Decision Date: 17 June 2010

903 N.Y.S.2d 45
74 A.D.3d 606

Bridget DE SOCIO, Plaintiff-Respondent,
v.
136 EAST 56TH STREET OWNERS, INC., et al., Defendants-Appellants.

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

June 17, 2010.

903 N.Y.S.2d 46

Litchfield Cavo LLP, New York (Daniel T. Hughes of counsel), for appellants.

Law Office of Michael K. O'Donnell, White Plains (Michael K. O'Donnell of counsel), for respondent.

SAXE, J.P., CATTERSON, RENWICK, RICHTER, ABDUS-SALAAM, JJ.

74 A.D.3d 606

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered on or about February 19, 2009, which, to the extent appealed from, granted plaintiff's motion pursuant to CPLR 3126 to strike the answer for failure to provide discovery, unanimously reversed, on the law and the facts, without costs, the motion denied, the answer reinstated, and the matter remanded for consideration, after affording the parties an opportunity to be heard, of such lesser penalty than striking the answer, as the court deems just.

The preliminary conference in this matter was held on April 25, 2007, and plaintiff's first document request is dated August 7, 2007. During 2007 and 2008, several conferences were held

74 A.D.3d 607

and defendants were directed to respond to plaintiff's discovery demands. In March 2008, plaintiff sent a second document demand requesting, among other things, all minutes of the Board concerning this litigation and all documents concerning this litigation in the custody or control of the current management company for the building. In June 2008, plaintiff's counsel wrote to defendants' counsel noting that defendants had failed to comply with the court's discovery orders. The letter apprised counsel that a motion seeking appropriate sanctions would be filed unless defendants complied

903 N.Y.S.2d 47

with all court orders immediately. On July 30, 2008, plaintiff's counsel again wrote to defendants' counsel, noting that there had been no response to the June letter and enclosing a draft notice of motion. On July 31, 2008, defendants' counsel responded that there would be a complete response to the letter by August 8 and that there was no need for plaintiff to make a motion. On September 12, 2008, after failing to receive the requested discovery, plaintiff's counsel again wrote to defendants' attorney indicating that plaintiff intended to file a sanctions motion. It is that motion, which sought either striking of the answer or a conditional order of preclusion, which is the...