Doino v. RPS Corp. , 145 A.D.3d 576 ( 2016 )

Doino v RPS Corp. (2016 NY Slip Op 08478)

Doino v RPS Corp.

2016 NY Slip Op 08478

Decided on December 15, 2016

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 on December 15, 2016
Sweeny, J.P., Renwick, Richter, Manzanet-Daniels, Kapnick, JJ.

2517N 157452/13

[*1] Michael Doino, Plaintiff-Appellant,

v

RPS Corp., Defendant-Respondent, Three Boroughs LLC, et al., Defendants.

Gregory J. Cannata & Associates, LLP, New York (Gregory J. Cannata of counsel), for appellant.

Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for respondent.

Order, Supreme Court, New York County (Robert D. Kalish, J.), entered on or about March 24, 2016, which denied plaintiff's motion to strike defendant RPS Corp.'s answer pursuant to CPLR 3126(3) or, in the alternative, to resolve all issues of liability in his favor pursuant to CPLR 3126(1), unanimously affirmed, without costs.

We agree with the motion court that the drastic remedy of striking defendant's answer, pursuant to CPLR 3126, was not warranted.

Plaintiff failed to show that he has been unduly prejudiced by the delay, and concedes that defendant was in compliance with the prior court orders as of January 2016. Moreover, defendant has been penalized for its belated responses and disclosure; pursuant to a conditional self-executing order issued by the motion court in May 2015, defendant RPS Corp. is "precluded from offering evidence at trial on the issue of liability." We see no basis for imposing any additional penalty.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 15, 2016

CLERK