Continental Indus. Group, Inc. v. Ustuntas

Continental Indus. Group, Inc. v Ustuntas (2019 NY Slip Op 04340)

Continental Indus. Group, Inc. v Ustuntas

2019 NY Slip Op 04340

Decided on June 4, 2019

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 June 4, 2019
Acosta, P.J., Richter, Kapnick, Kahn, Kern, JJ.

9533N 653215/12

[*1] Continental Industries Group, Inc., Plaintiff-Appellant,

v

Hakan Ustuntas, et al., Defendants-Respondents.

Shipman & Goodwin LLP, New York (Michael T. Conway of counsel), for appellant.

Gunay Law, P.C., New York (Petek Gunay of counsel), for respondents.

Order, Supreme Court, New York County (Andrea Masley, J.), entered June 18, 2018, which, inter alia, granted defendants' motion for discovery sanctions and awarded attorneys' fees and costs, unanimously affirmed, with costs.

The motion court's decision was a provident exercise of discretion (see generally Arts4All, Ltd. v Hancock, 54 AD3d 286 [1st Dept 2008], affd 12 NY3d 846 [2009], cert denied 559 U.S. 905 [2010]). The record demonstrates that plaintiff exhibited a continued pattern of noncompliance without any excuse, and provided ever-changing and irreconcilable statements with respect to the unavailability of documents. Such conduct sufficiently supports a finding that plaintiff intentionally made the requested emails unavailable to defendants (see Fish & Richardson, P.C., 75 AD3d 419 [1st Dept 2010]). Furthermore, plaintiff's conduct over more than five years deprived defendants of the opportunity to take meaningful discovery and present a full defense, and caused defendants to expend an unnecessary amount of time and resources (see Pegasus Aviation I., Inc. v Variq Logistica, S.A., 26 NY2d 543 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 4, 2019

CLERK