Dietrick v Gutman

Dietrick v Gutman 2007 NY Slip Op 03566 [39 AD3d 392] April 24, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 6, 2007

William Dietrick, Appellant,
v
Judith Gutman et al., Respondents.

—[*1] Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant.

Marshall, Conway, Wright & Bradley, P.C., New York (Steven L. Sonkin of counsel), for Judith Gutman, respondent.

Bleakley, Platt & Schmidt, LLP, White Plains (Andrea J. Smith of counsel), for Mercer Square Owners Corp. and Insignia Residential Group, Inc., respondents.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered June 22, 2006, which denied plaintiff's motion to vacate a prior order precluding him from testifying at trial, and granted defendants' cross motions for summary judgment dismissing the complaint and all cross claims, unanimously reversed, on the law, without costs, the order of preclusion vacated, the cross motions denied, the complaint reinstated and the matter remanded for further proceedings, including consideration of alternative sanctions. Appeal from order, same court and Justice, entered September 29, 2006, insofar as it denied plaintiff's motion to reargue the June 22, 2006 order, unanimously dismissed, without costs, as taken from a nonappealable order (Nitec Paper Corp. v Carborundum Co., 73 AD2d 881 [1980], lv dismissed 49 NY2d 1047 [1980]).

Plaintiff's excuse for noncompliance with the court's order that he be deposed by a date certain is sufficient to preclude a finding that he engaged in willful and contumacious conduct in the discovery process. Concur—Saxe, J.P., Williams, Buckley, Catterson and Malone, JJ.