K-F/X Rentals & Equip., LLC v FC Yonkers Assoc., LLC

K-F/X Rentals & Equip., LLC v FC Yonkers Assoc., LLC 2015 NY Slip Op 06712 Decided on September 2, 2015 Appellate Division, Second 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 September 2, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
THOMAS A. DICKERSON
ROBERT J. MILLER
COLLEEN D. DUFFY, JJ.
2014-04974
(Index No. 54201/11)

[*1]K-F/X Rentals & Equipment, LLC, appellant, et al., plaintiffs,

v

FC Yonkers Associates, LLC, defendant, P.J. Herman, LLC, respondent (and a third-party action).

Aboulafia Law Firm, LLC, New York, N.Y. (Matthew S. Aboulafia of counsel), for appellant.

Burke, Gordon & Conway, White Plains, N.Y. (Jayne F. Monahan of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for injury to property, the plaintiff K-F/X Rentals & Equipment, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Wood, J.), dated May 2, 2014, as, in effect, denied that branch of its motion which was pursuant to CPLR 3126 to strike the answer of the defendant P.J. Herman, LLC.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Under the circumstances of this case, the Supreme Court properly, in effect, denied that branch of the appellant's motion which was pursuant to CPLR 3126 to strike the answer of the defendant P.J. Herman, LLC (hereinafter P.J. Herman). The appellant waived any objection to the adequacy of P.J. Herman's disclosure by filing a note of issue and certificate of readiness prior to moving pursuant to CPLR 3126 for the imposition of a discovery sanction (see Marte v City of New York, 102 AD3d 557, 558; Rivera-Irby v City of New York, 71 AD3d 482, 482; Iscowitz v County of Suffolk, 54 AD3d 725, 725).

RIVERA, J.P., DICKERSON, MILLER and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court