61 A.D.3d 955
N.Y. App. Div.
2009

ALICE SILVERBERG, Respondent, v ANAMARIA GUZMAN et al., Appellants.

Appellate Division of the Supreme Court of the State of New York, Second Department

61 A.D.3d 955 | 878 N.Y.S.2d 177

Rivera, J.P., Angiolillo, Eng and Belen, JJ.

inferred from a party‘s repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply” (Duncan v Hebb, 47 AD3d at 871 [internal quotations marks and citations omitted]; see Allen v Calleja, 56 AD3d 497 [2008]).

Here, the Supreme Court did not improvidently exercise its discretion in striking the appellants’ answer. The appellants repeatedly failed to comply with court orders directing the production of discovery documents and witnesses for examinations before trial, and failed to provide reasonable excuses to justify those failures.

The Supreme Court also did not improvidently exercise its discretion in denying that branch of the appellants’ motion which was to vacate the note of issue filed by the plaintiffs and extend their time to move for summary judgment. The certificate of readiness contained no misstatements or material errors and it was the appellants’ own failures to timely comply with court orders and discovery demands that delayed the completion of discovery (see Lynch v Vollono, 6 AD3d 505 [2004]; Ford v J.R.D. Mgt. Corp., 238 AD2d 307 [1997]; Mardiros v Ghaly, 206 AD2d 413, 414 [1994]).

The Supreme Court properly denied that branch of the appellants’ motion which was for leave to renew their opposition to the plaintiffs’ cross motion to strike their answer. A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221 [e] [2]) and “shall contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [3]; see Chernysheva v Pinchuck, 57 AD3d 936 [2008]; Dinten-Quiros v Brown, 49 AD3d 588 [2008]; Madison v Tahir, 45 AD3d 744 [2007]). Here, the appellants did not provide a reasonable justification for their failure to present the new facts on the original motion. Moreover, the materials submitted in support of that branch of the appellants’ motion which was for leave to renew would not have altered the court‘s original determination.

The appellants’ remaining contentions are either not properly before this Court or without merit. Rivera, J.P., Angiolillo, Eng and Belen, JJ., concur.