Ganz v. Florman ( 2023 )

Ganz v Florman (2023 NY Slip Op 00632)

Ganz v Florman

2023 NY Slip Op 00632

Decided on February 07, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 07, 2023
Before: Renwick, J.P., Gesmer, Moulton, Kennedy, Mendez, JJ.

Index No. 805177/19 Appeal No. 17252 Case No. 2022-02278

[*1]Jeffrey Ganz et al., Plaintiffs-Appellants,

v

Sander S. Florman, M.D., et al., Defendants-Respondents.

Essner & Kobin, LLP, New York (Howard Essner of counsel), for appellants.

Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Elliott J. Zucker of counsel), for respondents.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered on or about October 20, 2021, which, to the extent appealed from, granted defendants' motion to dismiss the complaint pursuant to CPLR 3042(d), unanimously affirmed, without costs.

Plaintiffs' failure to submit opposition papers to defendants' motion to dismiss does not render the order an unappealable order entered upon default (CPLR 5511), as plaintiff appeared and orally opposed the motion during the final discovery conference (see Spatz v Bajramoski, 214 AD2d 436, 436 [1st Dept 1995]).

On the merits, the court providently exercised its discretion in dismissing the complaint in view of plaintiffs' longstanding pattern of noncompliance with discovery demands and court orders, which raised an inference of willful and contumacious conduct (see Jones v Green, 34 AD3d 260, 261 [1st Dept 2006]; Goldstein v CIBC World Mkts. Corp., 30 AD3d 217, 217 [1st Dept 2006]). Plaintiffs failed to produce all requested discovery during a 1½ year period, despite being afforded numerous opportunities to do so, including denial of a prior motion to dismiss, and did not offer any explanation for the delay.THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 7, 2023