Center Sheet Metal v. Cannon Design, Inc. ( 2020 )

Center Sheet Metal v Cannon Design, Inc. (2020 NY Slip Op 04010)

Center Sheet Metal v Cannon Design, Inc.

2020 NY Slip Op 04010

Decided on July 16, 2020

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 July 16, 2020
Manzanet-Daniels, J.P., Mazzarelli, Gesmer, Oing, Singh, JJ.

11852 309853/08

[*1] Center Sheet Metal, et al., Plaintiffs-Appellants,

v

Cannon Design, Inc., et al., Defendants-Respondents.

Perry, Van Etten, Rozanski & Kutner, LLP, Melville (Leonard Porcelli of counsel), for appellants.

Ahmuty, Demers & McManus, Albertson (Nicholas P. Calabria of counsel), for Cannon Design, Inc. and Hartford Insurance Company, respondents.

Weg & Myers, P.C., New York (Joshua L. Mallin of counsel), for Martin Associates, Inc., respondent.

Marshall Dennehey Warner Coleman & Goggin, P.C., New York (Richard C. Imbrogno of counsel), for Lexington Insurance Company, respondent.

Adrian & Associates, LLC, New York (Charles B. Bergin of counsel), for Burlington Insurance Company, respondent.

Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered on or about March 13, 2019, which denied plaintiffs' motion to allow the deposition of plaintiff Aspen Specialty Insurance Company to proceed, and precluded Aspen from offering any witness to testify at trial, unanimously affirmed, with costs.

Plaintiffs violated the court's third conditional order of preclusion by failing to produce a witness for Aspen's scheduled deposition, and failed to demonstrate either a reasonable excuse for their failure to comply or a meritorious claim. Accordingly, the court properly denied their motion to allow the deposition to proceed (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 83 [2010]). Contrary to plaintiffs' argument, the court was not required to find that their failure to comply was willful (Keller v Merchant Capital Portfolios, LLC, 103 AD3d 532, 533 [1st Dept 2013]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 16, 2020

CLERK