Esposito v Isaac

[*1] Esposito v Isaac 2010 NY Slip Op 51818(U) [29 Misc 3d 129(A)] Decided on October 22, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 22, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ
.

Luisa C. Esposito, Plaintiff-Respondent, 570337/10

against

Allen H. Isaac, individually and as a partner of Gladstein & Isaac, Defendant-Appellant, and Harvey Gladstein, individually and as a partner of Gladstein & Isaac, Gladstein & Isaac, et al., Defendants.

Defendant Allen H. Isaac, individually and as a partner of Gladstein & Isaac, appeals, as limited by his briefs, from (1) that portion of an order of the Civil Court of the City of New York, New York County (Anil C. Singh, J.), dated November 20, 2009, which denied his motion to dismiss the complaint pursuant to CPLR 3126, (2) that portion of an order (same court and Judge), dated January 26, 2010, which denied his motion to be relieved of all disclosure obligations, and (3) an order (same court and Judge), dated March 17, 2010, which denied his motion to dismiss the complaint pursuant to CPLR 3126.

Per Curiam.

Orders (Anil C. Singh, J.), dated November 20, 2009, January 26, 2010, and March 17, 2010, affirmed, with one bill of $10 costs.

With regard to the second order on appeal, while plaintiff failed to obtain personal jurisdiction over defendant Isaac (see Esposito v Isaac,68 AD3d 483 [2009]), jurisdiction remained over the defendant partnership of which Isaac was partner (see Brown v Sagamore Hotel, 184 AD2d 47 [1992]). Therefore, Isaac, in his representative capacity, was responsible for providing disclosure (see CPLR 3101[a]).

With respect to the first and third orders on appeal, Civil Court providently exercised its discretion in denying Isaac's successive motions to dismiss the complaint pursuant to CPLR 3126, since plaintiff demonstrated a reasonable excuse for her failure to comply with the [*2]conditional disclosure orders and potentially meritorious claims (see generally AWL Indus., Inc. v QBE Ins. Corp., 65 AD3d 904 [2009]). Moreover, while plaintiff's response to disclosure demands and orders has at times been lax, Isaac failed to show that plaintiff's failure to fulfill her disclosure obligations was willful, contumacious or the result of bad faith (see Weissman v 20 E. 9th St. Corp., 48 AD3d 242 [2008]). In this connection, we note that the disclosure process, which has been actively managed by Civil Court, is nearly complete.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 22, 2010