Board of Mgrs. of the Thompson Condominium v B. Geller Restoration, Inc.

Board of Mgrs. of the Thompson Condominium v B. Geller Restoration, Inc. 2019 NY Slip Op 01163 Decided on February 14, 2019 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 February 14, 2019
Friedman, J.P., Sweeny, Webber, Kahn, Kern, JJ.
8422N 184 153466/13 154401/13 453015/15

[*1] The Board of Managers of the Thompson Condominium, Plaintiff-Appellant,

v

B. Geller Restoration, Inc., Defendant-Respondent. [And Other Actions]

Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for appellant.

Camacho Mauro Mulholland, LLP, New York (Yashana McAuley-Parrish of counsel), for respondent.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered November 17, 2017, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to strike the answer for noncompliance with discovery orders, unanimously affirmed, without costs.

The motion court did not abuse its discretion by denying plaintiff's motion (see Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843, 845 [2008]). The record establishes that a material item of discovery (i.e., the project file) was omitted from defendant's initial response to plaintiff's discovery demand. Defendant's omission does not establish that it acted in bad faith or that its conduct was willful or contumacious. Once plaintiff specifically requested the project file, it was produced within a month. Moreover, there is no evidence that plaintiff was prejudiced by defendant's conduct, and defendant complied with all other discovery demands.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 14, 2019

CLERK