Herman v. Herman

Herman v Herman (2015 NY Slip Op 08925)

Herman v Herman

2015 NY Slip Op 08925

Decided on December 3, 2015

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 3, 2015
Tom, J.P., Sweeny, Andrias, Gische, JJ.

650205/11 -590354/13 16289N 590355/13 16288 16287

[*1] Rosemarie A. Herman, etc., et al., Plaintiffs-Respondents,

v

Julian Maurice Herman, et al., Defendants-Appellants, J. Maurice Herman, etc., et al., Defendants. Julian Maurice Herman, Third-Party Plaintiff-Appellant, Joseph Esmail, et al., Third-Party Defendants. [And Another Third-Party Action]

Akerman LLP, New York (M. Darren Traub of counsel), for appellants.

Law Offices of Craig Avedisian, P.C., New York (Craig Avedisian of counsel), and Jaspan Schlesinger LLP, Garden City (Steven R. Schlesinger of counsel), for respondents.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered July 15, 2015, and two separate orders same court and Justice, entered July 13, 2015, which, to the extent appealed from as limited by the parties' briefs, struck defendant/third-party plaintiff Julian Maurice Herman's answer, counterclaims, cross claims and third-party claims, and granted a default judgment against him, unanimously affirmed, with costs.

Our review of the extensive record of discovery disputes and motion practice supports a finding that defendant/third-party plaintiff Julian Maurice Herman's (Maurice) repeated noncompliance with the court's many discovery orders was "dilatory, evasive, obstructive and ultimately contumacious" (CDR Créances S.A.S. v Cohen, 23 NY3d 307, 318 [2014]). It prejudiced plaintiffs "by impeding [their] ability to obtain true discovery and by forcing [them] to spend enormous amounts of money and time to prove [their] case" (id. at 323), and was an unnecessary drain on limited court resources. Maurice's misconduct was not isolated, and he [*2]made little or no good faith attempt to correct it (id.). A lesser sanction would not have deterred Maurice's continued discovery violations (id.).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 3, 2015

CLERK