Cach, LLC v Juanico

[*1] Cach, LLC v Juanico 2010 NY Slip Op 51769(U) [29 Misc 3d 128(A)] Decided on October 5, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 5, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2009-939 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 (Maureen A. Healy, J.), entered February 24, 2009. The order granted plaintiff's motion to strike defendant's answer and counterclaims to the extent of precluding defendant from offering evidence at trial with respect to any matter that was the subject of plaintiff's interrogatories, and denied defendant's cross motion to, among other things, preclude plaintiff from offering evidence at trial and for the imposition of sanctions against plaintiff.

ORDERED that the order is affirmed without costs.

Plaintiff commenced this action to recover for breach of a retail installment agreement and based on an account stated. In October 2008, plaintiff moved, pursuant to CPLR 3126, to strike defendant's answer and counterclaims. Defendant cross-moved to, among other things, preclude plaintiff from offering evidence at trial and for the imposition of sanctions against plaintiff. By order entered October 23, 2008 (Lee A. Mayersohn, J.), the Civil Court granted plaintiff's motion to the extent of directing defendant to serve full and complete responses to plaintiff's interrogatories within 60 days of the date of the order, and granted defendant's cross motion to the extent of instructing plaintiff to provide defendant with certain documentation within 120 days of the date of the order. Although defendant timely filed a notice of appeal from the October 23, 2008 order, he did not seek a stay of that order. The October 23, 2008 order was affirmed by order of this court dated April 16, 2010 (28 Misc 3d 140[A], 2010 NY Slip Op 51544[U]). In January 2009, plaintiff moved to strike defendant's answer and counterclaims, pursuant to CPLR 3126, due to defendant's failure to comply with the October 23, 2008 order. Defendant cross-moved to, among other things, preclude plaintiff from offering evidence at trial and for the imposition of sanctions against plaintiff. By order entered February 24, 2009, the Civil Court (Maureen A. Healy, J.) granted plaintiff's motion to the extent of precluding [*2]defendant from offering evidence at trial on any matter that was the subject of plaintiff's interrogatories, and denied defendant's cross motion, noting that the issues raised therein had already been decided by the October order, and the time in which plaintiff had to comply with said order had not yet expired.

The supervision of disclosure and the setting of reasonable terms and conditions therefor are matters resting within the discretion of the court of original instance, and a determination to impose sanctions for conduct which frustrates the disclosure scheme of the CPLR should not be disturbed on appeal absent an improvident exercise of discretion (see Savin v Brooklyn Mar. Park Dev. Corp., 61 AD3d 954 [2009]). Upon a review of the record, we find that the Civil Court did not improvidently exercise its discretion in granting plaintiff's motion to strike defendant's answer and counterclaims to the extent of precluding defendant from offering evidence at trial with respect to any matter that was the subject of plaintiff's interrogatories. Moreover, defendant's cross motion for, among other things, preclusion and sanctions was properly denied since it was made prior to the expiration of the time period in which plaintiff was directed to provide documentation to defendant. Accordingly, the order is affirmed.

We note that in our review of the Civil Court's order, we cannot consider any of the dehors-the-record allegations defendant made in its appellate brief (see Chimarios v Duhl, 152 AD2d 508 [1989]; Jerome Ave. Condominium, Inc. v Ram, 25 Misc 3d 130[A], 2009 NY Slip Op 52116[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: October 05, 2010