Whitler Contracting Corp. v. City of New York

Order, Supreme Court, New York County (Herman Cahn, J.), entered on or about March 22, 1989, which, inter alia, granted plaintiff’s motion to open its default resulting from its failure to appear in opposition to defendant’s motion for discovery sanctions, and denied defendant’s motion to dismiss the action pursuant to CPLR 3126 with leave to renew upon plaintiff’s failure to comply with the discovery provisions of the order, unanimously affirmed, without costs. Although plaintiff’s successive excuses for its failure to turn over certain requested documents until confronted with legal action suggest evasiveness on its part in complying with existing judicial orders compelling discovery, the record nonetheless lacks sufficient evidence establishing plaintiff’s willful noncompliance with the discovery orders (see, Sony Corp. v Savemart, Inc., 59 AD2d 676, 677). A review of the record indicates the discovery process was apparently interrupted by, inter alia, an audit of plaintiff’s financial records by the city’s Comptroller’s office (which records were sought by defendant) and by the internal reorganization of plaintiff’s counsel’s law firm. In view of these seemingly nonwillful delays or obstructions of discovery, the trial court properly exercised its broad discretion in denying defendant’s motion to dismiss. (See generally, Associated Mut. Ins. Co. v Dyland Tavern, 105 AD2d 892.) Additionally, we find unpreserved for review the city’s argument, raised for the first time on appeal, that the court improperly granted plaintiff’s motion for vacatur of its default where plaintiff failed to submit an affidavit of merit in support of its motion. The inadvertent nature of plaintiff’s default in appearing in opposition to the city’s prior motion is reflected in the record, which indicates that the calendar clerk erroneously advised plaintiff’s counsel to submit its opposition papers to the wrong Judge. Concur—Kupferman, J. P., Carro, Rosenberger, Ellerin and Rubin, JJ.