Knoch v. City of New York

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Kurtz, J.), dated September 6, 2012, as denied that branch of her motion pursuant to CPLR 3126 which was to impose a monetary sanction upon the defendant for failure to provide discovery and granted that branch of the motion which was for an award of costs only to the extent of awarding her costs in the sum of $100. Ordered that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof denying that branch of the plaintiffs motion which was to impose a monetary sanction upon the defendant, and substituting therefor a provision granting that branch of the motion to the extent of imposing a monetary sanction upon the defendant in the sum of $2,500 payable to the plaintiffs counsel; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff. The defendant did not begin to produce evidence crucial to the prosecution of this case until more than three years after such production was ordered by the court, five months after the original trial date was adjourned, and two months after the plaintiff refiled the note of issue. Consequently, a monetary sanction in the sum of $2,500 is warranted to compensate the plaintiffs counsel for the time expended and costs incurred in connection with the defendant’s failure to fully and timely comply with court-ordered disclosure and discovery requests (see CPLR 3126; O’Neill v Ho, 28 AD3d 626, 627 [2006]). The plaintiffs remaining contentions are improperly raised for the first time on appeal, and therefore are not properly before this Court (see 1812 Quentin Rd., LLC v 1812 Quentin Rd. Condominium Ltd., 94 AD3d 1070, 1072 [2012]; Schiff v State of New York, 31 AD3d 526, 529 [2006]; Cadle Co. v Organes Enters., Inc., 29 AD3d 927, 929 [2006]). Dillon, J.E, Hall, Roman and Cohen, JJ., concur.