Crescent Elec. Supply Co., Inc., of N.Y. v Travelers Cas. & Sur. Co. of Am.

Crescent Elec. Supply Co., Inc., of N.Y. v Travelers Cas. & Sur. Co. of Am. 2013 NY Slip Op 07442 Decided on November 13, 2013 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 November 13, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
PETER B. SKELOS
CHERYL E. CHAMBERS
L. PRISCILLA HALL, JJ.
2010-05482
(Index No. 26991/08)

[*1]Crescent Electric Supply Company, Inc., of New York, respondent,

v

Travelers Casualty and Surety Company of America, et al., defendants-appellants, et al., defendant; Michael J. Barnaby, nonparty-appellant.




Law Offices of Michael J. Barnaby, LLC, New York, N.Y.
(Michael J. Barnaby, pro se, of counsel), for defendants-appellants and
nonparty-appellant.
Korsinsky & Klein, LLP, New York, N.Y. (Michael Korsinsky
of counsel), for respondent.


DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendants Travelers Casualty and Surety Company of America and Anderson Electric, Inc., and their attorney, the nonparty Michael J. Barnaby, appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated April 12, 2010, as granted that branch of the plaintiff's motion which was for an award of costs, including an attorney's fee, payable by Michael J. Barnaby pursuant to 22 NYCRR 130-1.1, and granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the answer of the defendants Travelers Casualty and Surety Company of America and Anderson Electric, Inc., to the extent of conditionally striking that answer unless those defendants produced certain documents on or before May 10, 2010, and completed all depositions on or before June 28, 2010.

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

Under the circumstances of this case, the Supreme Court providently exercised its discretion in awarding the plaintiff costs, including an attorney's fee, payable by the nonparty Michael J. Barnaby, the attorney for the defendants Travelers Casualty and Surety Company of America and Anderson Electric, Inc. (hereinafter the Travelers defendants), for Barnaby's frivolous conduct (see 22 NYCRR 130-1.1; Seaman v Wyckoff Hgts. Med Ctr., Inc., 25 AD3d 598; Barco Auto Leasing Corp. v Thornton, 298 AD2d 341).

The Supreme Court also providently exercised its discretion in conditionally striking the answer of the Travelers defendants for their willful and contumacious conduct in repeatedly failing to comply with court-ordered discovery, coupled with inadequate explanations for these defaults (see CPLR 3126; Maignan v Nahar, 37 AD3d 557).
RIVERA, J.P., SKELOS, CHAMBERS and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court