Cach, LLC v Juanico

[*1] Cach, LLC v Juanico 2010 NY Slip Op 51544(U) [28 Misc 3d 140(A)] Decided on April 16, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2009-125 Q C.

Cach, LLC, Respondent,

against

Steve Juanico, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Lee A. Mayersohn, J.), entered October 23, 2008. The order, insofar as appealed from, granted plaintiff's motion to strike defendant's answer and counterclaims to the extent of compelling defendant to respond to plaintiff's discovery demands and, in effect, denied so much of defendant's cross motion as sought to preclude plaintiff from providing evidence at trial and to impose sanctions against plaintiff.

ORDERED that the order, insofar as appealed from, is affirmed without costs.

In this action to recover damages for breach of a retail installment agreement and based on an account stated, insofar as is relevant to this appeal, plaintiff moved, pursuant to CPLR 3126, to strike defendant's answer and counterclaims. Defendant cross-moved seeking, among other things, to preclude plaintiff from providing evidence
at trial and to impose sanctions against plaintiff for its failure to comply with defendant's discovery demands. Insofar as is relevant to this appeal, the Civil Court granted plaintiff's motion to the extent that defendant was directed to serve full and complete responses to plaintiff's interrogatories and denied so much of defendant's cross motion as sought to preclude plaintiff from providing evidence at trial and to impose sanctions.

On appeal, defendant contends, among other things, that the complaint should be stricken due to plaintiff's failure to comply with his discovery demands and plaintiff's failure to prove that plaintiff had a proper assignment of the alleged obligation.

The supervision of disclosure and the setting of reasonable terms and conditions therefor are matters resting within the motion court's discretion and, absent an improvident exercise of that discretion, the motion court's determinations will not be disturbed on appeal (see Gillen v Utica First Ins. Co., 41 AD3d 647 [2007]). Upon a review of the record, we find that, in the instant case, the Civil Court did not improvidently exercise its discretion. Defendant's remaining contentions are without merit.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur. [*2]
Decision Date: April 16, 2010