Marte v City of New York

Marte v City of New York 2013 NY Slip Op 00387 Decided on January 24, 2013 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 January 24, 2013
Tom, J.P., Mazzarelli, Renwick, DeGrasse, JJ.
8233N 113275/02

[*1]Elvin Marte, Plaintiff-Appellant,

v

City of New York, Defendant-Respondent. [And a Third-Party Action]




Paul G. Vesnaver, PLLC, Baldwin (Victor A. Carr of counsel),
for appellant.
Michael A. Cardozo, Corporation Counsel, New York
(Avshalom Yotam of counsel), for respondent.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered August 8, 2011, which denied plaintiff's motion to strike defendant's answer pursuant to CPLR 3126, unanimously affirmed, without costs.

Discovery sanctions were inappropriate because plaintiff waived his right to challenge deficiencies in defendant's responses to discovery orders by filing a note of issue and certificate of readiness representing that all discovery had been completed and that there were no outstanding discovery requests (see Rivera-Irby v City of New York, 71 AD3d 482, 482 [1st Dept 2010]; Escourse v City of New York, 27 AD3d 319 [1st Dept 2006]).

In any event, denial of the motion to strike would not have constituted an abuse of discretion, given that the City ultimately complied with the order to produce the City employee a month after the court-ordered deadline (see Nussbaum v D'Amico, 29 AD3d 449 [1st Dept 2006]), and the City's conduct during pre-note of issue discovery proceedings did not amount to willful and contumacious behavior (see Glaser v City of New York, 79 AD3d 600 [1st Dept 2010]). The court properly considered the City's opposition papers, given that plaintiff has not [*2]shown prejudice by the late service, and had, in fact, submitted reply and supplemental reply affirmations (see Prato v Arzt, 79 AD3d 622 [1st Dept 2010]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 24, 2013

CLERK