Abildgaard v Van Den Brulle

[*1] Abildgaard v Van Den Brulle 2015 NY Slip Op 51823(U) Decided on December 15, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 15, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ.
570736/15

David Abildgaard, Plaintiff-Appellant,

against

Craig Van Den Brulle and Capitol Furnishings, Inc., Defendants-Respondents.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (James E. d'Auguste, J.), entered on or about December 5, 2014, which, upon defendants' motion to strike the complaint or to compel disclosure pursuant to CPLR 3124 and 3126, precluded plaintiff from offering into evidence a photocopied document.

Per Curiam.

Order (James E. d'Auguste, J.), entered on or about December 5, 2014, affirmed, with $10 costs.

Civil Court providently exercised its discretion in granting a preclusion order, where plaintiff failed to furnish the original "debt acknowledgment" document in response to defendant's discovery demand and the parties' stipulation, and subsequently claimed that document became lost (see Summit Waterproofing & Restoration Corp. v Scarsdale Country Estates Owners, 228 AD2d 431 [1996]; Christian v City of New York, 269 AD2d 135 [2000]). The nature and degree of penalty, if any, to be imposed by a court pursuant to CPLR 3126, is a matter lying squarely within the discretion of the trial court (see Cherry v Herbert & Co., 212 AD2d 203, 209 [1995]), and we discern no abuse of discretion here in that regard.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: December 15, 2015