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Housing Development Associates, LLC v. Gilbert Milan

New York Supreme and/or Appellate Courts APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


December 22, 2011

HOUSING DEVELOPMENT ASSOCIATES, LLC,
PETITIONER-LANDLORD-RESPONDENT,
v.
GILBERT MILAN,
RESPONDENT-TENANT-APPELLANT.

Tenant appeals from (1) an order of the Civil Court of the City of New York, New York County (Brenda S. Spears, J.), dated June 1, 2010, which conditionally granted landlord's motion to strike the answer unless tenant produced certain documents, and (2) an order (same court and Judge), dated October 14, 2010, which granted landlord's motion to strike tenant's answer in a holdover summary proceeding.

Per curiam.

Housing Dev. Assoc., LLC v Milan

Decided on December 22, 2011

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ

Order (Brenda S. Spears, J.), dated October 14, 2010, modified by denying landlord's motion to strike the answer on condition that tenant submits to a deposition at a time and place mutually agreeable to both parties, but no later than 30 days before trial; as modified, order affirmed, without costs. Appeal from order (same court and Judge), dated June 1, 2010, dismissed, without costs, as academic.

A court may strike a pleading as a sanction against a party who refuses to comply with an order of disclosure (CPLR 3126[3]), but only when the party seeking discovery "clearly demonstrates that the failure to disclose was willful, contumacious, or manifested bad faith" (Tsai v Hernandez, 284 AD2d 116, 117 [2001]; see Cespedes v Mike & Jac Trucking Corp., 305 AD2d 222, 223 [2003]). Here, while tenant was tardy in providing disclosure, the record evidence before us does not demonstrate that landlord established the predicate required for the extreme penalty imposed (see Irizarry v Ashar Realty Corp., 14 AD3d 323 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: December 22, 2011

20111222

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