CDJ Corp. v. Commodore Manufacturing Corp.

In an action, inter alia, to recover damages for work, labor, and services performed, the plaintiff appeals from (1) so much of an order of the Supreme Court, Kings County (Lewis, J), dated September 5, 2003, as granted that branch of the defendant’s motion pursuant to CELR 3126 which was to direct it to produce certain cancelled checks and to preclude it from submitting evidence with respect to its costs “for which cancelled checks have not been produced,” and (2) so much of an order of the same court dated October 6, 2006, as, upon its failure to produce the cancelled checks, granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint. Ordered that the orders are affirmed insofar as appealed from, with one bill of costs. The plaintiff’s repeated noncompliance with court orders directing it to produce cancelled checks demonstrating its labor costs in connection with a construction contract, together with inadequate excuses therefor, warranted a finding that the plaintiff’s noncompliance was willful and contumacious (see Reid v Schoenthal, 288 AD2d 203 [2001]; Frias v Fortini, 240 AD2d 467 [1997]; Garcia v Kraniotakis, 232 AD2d 369 [1996]). Upon preclusion of this evidence, the plaintiff would have been unable to make a prima facie showing of its damages. Accordingly, the Supreme Court properly granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint (see Callaghan v Curtis, 48 AD3d 501 [2008]; Trataros Constr., Inc. v New York City School Constr. Auth., 46 AD3d 872 [2007]; Contarino v North Shore Univ. Hosp. at Glen Cove, 13 AD3d 571 [2004]; cf. Anderson v RC Dolner, Inc., 43 AD3d 837 [2007]). Mastro, J.P., Ritter, Carni and Eng, JJ., concur.