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Advanced Fertility Services, P.C. v. Yorkville Towers Associates

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 14, 2009

ADVANCED FERTILITY SERVICES, P.C., PLAINTIFF-RESPONDENT,
v.
YORKVILLE TOWERS ASSOCIATES, ET AL., DEFENDANTS-APPELLANTS.

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered October 16, 2008, which, in an action by a tenant against its landlord and managing agent for property damages and business interruption caused by water infiltration, granted defendants' motion pursuant to CPLR 3126 to dismiss plaintiff's complaint for noncompliance with disclosure orders unless plaintiff provided certain discovery, mostly related to its business interruption claim, by October 28, 2008, unanimously modified, on the facts, to grant the motion unless, within 30 days after service of a copy of this order, plaintiff pays defendants' attorney $5,000, and otherwise affirmed, with costs in favor of defendants, payable by plaintiff.

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.

Tom, J.P., Andrias, Buckley, DeGrasse, JJ.

107564/03

Defendants acknowledge that plaintiff provided the discovery responses by October 28, 2008, and do not assert prejudice as a result of general delay, but argue that the action should have been dismissed outright because of plaintiff's failure to explain its noncompliance with prior court orders directing discovery. While the drastic relief that defendants seek was properly denied for lack of a clear showing that the noncompliance was willful or contumacious (see Delgado v City of New York, 47 AD3d 550 [2008]), plaintiff's inexcusable laxness "should not escape adverse consequences" (Figdor v City of New York, 33 AD3d 560, 561 [2006]; see Postel v New York Univ. Hosp., 262 AD2d 40, 42 [1999]), and we modify accordingly.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090414

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