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

• Decision Date: 17 June 2010
• Parties: Bridget DE SOCIO, Plaintiff-Respondent, v. 136 EAST 56TH STREET OWNERS, INC., et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

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.

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.

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 heldand 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 compliedwith 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 subject of this appeal.

In opposition to the motion, defendants provided an affidavit from Stuart Smolar, the current property manager of defendant 136 East 56th Street, who explained that after receiving copies of plaintiff's document demands on October 28, 2008, he and another property manager searched various files and document indexes but were unable to locate any responsive materials. Defendant Heron no longer exists as an operating company; its assets were purchased by Halstead Management Company.¹ After the motion was filed, defendants' counsel sent a subpoena to Halstead seeking documents and materials related to the subject of this litigation. In response, counsel received an affidavit from Charles Mintz, an employee of Halstead, who explained that Halstead had no records regarding the subject of this litigation. That affidavit was provided to the court as part of defendants' response to the sanctions motion.

Although the determination of an appropriate sanction pursuant to CPLR 3126 lies in the trial court's discretion and should not be set aside absent a clear abuse of discretion ( Arts4All, Ltd. v. Hancock, 54 A.D.3d 286, 286, 863 N.Y.S.2d 193 [2008], affd. 12 N.Y.3d 846, 881 N.Y.S.2d 390, 909 N.E.2d 83 [2009], cert. denied --- U.S. ----, 130 S.Ct. 1301, 175L.Ed.2d 1076 [2010] ), here the trial court made no findings of fact and offered no explanation for its decision to strike the answer. Thus, no basis exists for deferring to the trial court's determination.

Although defendants now claim...