Connolly v Brachfeld

[*1] Connolly v Brachfeld 2007 NY Slip Op 51168(U) [15 Misc 3d 144(A)] Decided on June 5, 2007 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 5, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2006-1003 S C.

Eric Connolly and Frances Connolly, Respondents,

against

Scott Brachfeld d/b/a Scott's Carpentry and Scott's Carpentry, Inc., Appellants.

Appeal from an order of the District Court of Suffolk County, First District (James P. Flanagan, J.), dated January 3, 2006. The order, insofar as appealed from, (1) granted the branch of defendants' cross motion which sought to enter a default judgment against plaintiffs or, in the alternative, to strike plaintiffs' complaint based upon their failure to comply with the conditional order of the same court dated August 25, 2005, only to the extent of directing plaintiffs to appear for examinations before trial on February 6, 2006, and directing plaintiffs to serve and file an authorization for insurance records, and (2) conditioned the granting of the branch of defendants' cross

motion to vacate their default in failing to comply with the August 25, 2005 order upon defendants' attorney paying plaintiffs the sum of $100, plus $50 in costs.

Order, insofar as appealed from, affirmed without costs.

In the instant action for breach of a home improvement contract, defendants moved to dismiss the complaint by reason of plaintiffs' failure to provide responses to their discovery demands. The court issued a conditional order, dated February 19, 2004, which provided that defendants' motion was granted unless plaintiffs responded to defendants' discovery requests within 20 days of the court's mailing of a copy of its order.

After serving their responses, plaintiffs moved, inter alia, for an order striking defendants' [*2]answer for their failure to provide responses to the discovery demands and defendants cross-moved, inter alia, for the entry of a default judgment against plaintiffs based on their failure to comply with the February 19, 2004 order. Defendants argued that plaintiffs' responses to their discovery requests were inadequate. The court issued a conditional order, dated August 25, 2005, which provided that the parties' respective pleadings would be stricken unless they each appeared for examinations before trial on October 6, 2005, unless defendants served responses to plaintiffs' discovery demands
and unless plaintiffs served responses to defendants' additional discovery demands within 20 days of the court's mailing of a copy of its order.

After plaintiffs served their supplemental responses, plaintiffs moved, inter alia, for an order striking defendants' answer for willful failure to respond to plaintiffs' discovery demands and defendants cross-moved for the entry of a default judgment against plaintiffs based upon plaintiffs' failure to comply with the orders of the court dated February 19, 2004 and August 25, 2005. Defendants also sought an order vacating their default in complying with plaintiffs' discovery requests. The court issued a conditional order, dated January 3, 2006, from which defendants appeal. Said order directed the parties to appear for examinations before trial on February 6, 2006, directed plaintiffs to serve and file an authorization for insurance records within 20 days of the court's mailing of its order and vacated defendants' default in failing to comply with the August 25, 2005 order on condition that defendants' attorney pay plaintiffs the sum of $100, plus $50 in costs.

Contrary to defendants' contention, after reviewing the record, we find that plaintiffs made a "good-faith effort to address the requests meaningfully" (Kihl v Pfeffer, 94 NY2d 118, 123 [1999]). In addition, plaintiffs' attorney's affirmation established that
he informed defendants' attorney that he would not be available to conduct depositions on October 6, 2005 and that he made every effort to reschedule the depositions with defendants' attorney but received no response from said attorney regarding same. Accordingly, the lower court could properly find that plaintiffs were not in default for failing to comply with the August 25, 2005 order.

Furthermore, even though the court below found that defendants did not willfully fail to serve their responses to plaintiffs' discovery demands, the court did not improvidently exercise its discretion in awarding costs and sanctions to the plaintiffs in its January 3, 2006 order as a condition of vacating defendants' default in failing to comply with the August 25, 2005 order. Pursuant to UDCA 1906 (a), "[t]he court may in its discretion impose costs not exceeding fifty dollars. . .upon granting or denying a motion." In addition, the court did not impose a punitive sanction when it required defendants' attorney to pay the sum of $100 as a condition of vacating defendants' default in complying with the court's August 25, 2005 order, but rather imposed a compensatory sanction in order to compensate plaintiffs for their costs in moving to strike defendants' answer for defendants' failure to comply with the August 25, 2005
order (see Garan v Don & Walt Sutton Bldrs., Inc., 27 AD3d 521 [2006]). Accordingly, the order is affirmed. [*3]

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: June 5, 2007