McMahon v Cobblestone Lofts Condominium

McMahon v Cobblestone Lofts Condominium 2015 NY Slip Op 09630 Decided on December 29, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 29, 2015
Mazzarelli, J.P., Sweeny, Manzanet-Daniels, Gische, JJ.
16504N 151136/14

[*1] Shane McMahon, et al., Plaintiffs-Appellants,

v

The Cobblestone Lofts Condominium, et al., Defendants-Respondents, Nova Restoration of NY, Inc., et al., Defendants. [And A Third-Party Action]

Manatt, Phelps & Phillips, LLP, New York (Michael R. Gordon of counsel), for appellants.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York (I. Elie Herman of counsel), for respondents.

Order, Supreme Court, New York County (Geoffrey D.S. Wright, J.), entered July 30, 2015, which denied plaintiffs' motion to strike the answer of defendants-respondents (defendants), and limited plaintiffs' interrogatories and demands for the production of documents, unanimously modified, on the facts, to reinstate demand 22 and strike demand 17, and otherwise affirmed, without costs.

The motion court properly denied plaintiffs' motion to strike defendants' answer, since plaintiffs did not show that defendants' discovery violations, including their failure to fully comply with the court's preliminary conference order, were

willful, contumacious, or in bad faith (see Pezhman v Department of Educ. of the City of N.Y., 95 AD3d 625, 625-626 [1st Dept 2012]). Nor have plaintiffs shown that defendants refused to allow them to inspect the condominium's crawl space. Although defendants did not timely respond to plaintiffs' discovery demands and interrogatories, there was no showing of a "repeated failure" to comply with court orders directing disclosure (Herrera v City of New York, 238 AD2d 475 [2d Dept 1997]). The motion court properly struck or limited some of plaintiffs' discovery demands and interrogatories, even though defendants did not timely object to those requests (Jagopat v City of New York, 110 AD3d 507, 507 [1st Dept 2013]). Interrogatories 3, 4, 6, 7 and 8, and demands 7, 12, 15, 20, 21, 24-28, and 31-35 are "palpably improper" (id.), because they are either overly broad, unduly burdensome, irrelevant, or vague (see Haller v North Riverside Partners, 189 AD2d 615, 616 [1st Dept 1993]; Accent Collections, Inc. v Cappelli Enters., Inc., 84 AD3d 1283, 1284 [2d Dept 2011]). The motion court properly limited demand 8 to communications concerning the mold condition at issue (see Engel v Hagedorn, 170 AD2d 301, 301 [1st Dept 1991]). However, the motion court improperly struck demand 22, finding it duplicative of demand 17. Demand 22 seeks the production of documents concerning the condition of the unit, including the condition of the decking. Demand 17 seeks documents concerning construction, maintenance, and/or repair work on, under, around or [*2]affecting the decking. Because demand 22 encompasses demand 17, demand 17 should be stricken and demand 22 reinstated.

We have considered plaintiffs' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 29, 2015

CLERK