Execu/Search Group, Inc. v Scardina

Execu/Search Group, Inc. v Scardina 2010 NY Slip Op 00903 [70 AD3d 451] February 9, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 31, 2010

Execu/Search Group, Inc., Respondent,
v
Richard Scardina et al., Appellants. (And a Third-Party Action.)

—[*1] Peckar & Abramson, P.C., New York (Kevin J. O'Connor of counsel), for appellants.

Littler Mendelson, P.C., New York (Gregory B. Reilly, III of counsel), for respondent.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered August 19, 2009, which, insofar as appealed from as limited by the briefs, denied defendants' motion for partial summary judgment on their second and third counterclaims, without prejudice to renewal of the motion after the parties complete discovery, unanimously affirmed, with costs.

Given the procedural posture of the litigation, the IAS court properly denied defendants' motion for partial summary judgment on their counterclaims seeking unpaid commissions. Whether defendants misappropriated information while they were still working for plaintiff Execu/Search is a matter peculiarly within their own knowledge; however, at the time that the summary judgment motion was decided, defendants had not appeared for deposition or made their computers available for inspection. Thus, defendants cannot be heard to say that Execu/Search has failed to come forth with evidence sufficient to defeat the motion (CPLR 3212 [f]; see Raffaele v United States Life Ins. Co., 266 AD2d 100 [1999]). Concur—Tom, J.P., Andrias, Friedman, Nardelli and Catterson, JJ.

Motion seeking leave to supplement record and for other related relief denied.