New York Supreme and/or Appellate Courts Appellate Division, First Department
January 24, 2013
ELVIN MARTE, PLAINTIFF-APPELLANT,
CITY OF NEW YORK, DEFENDANT-RESPONDENT. [AND A THIRD-PARTY ACTION]
Marte v City of New York
Decided on January 24, 2013
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., Mazzarelli, Renwick, DeGrasse, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered August 8, 2011, which denied plaintiff's motion to strike defendant's answer pursuant to CPLR 3126, unanimously affirmed, without costs.
Discovery sanctions were inappropriate because plaintiff waived his right to challenge deficiencies in defendant's responses to discovery orders by filing a note of issue and certificate of readiness representing that all discovery had been completed and that there were no outstanding discovery requests (see Rivera-Irby v City of New York, 71 AD3d 482, 482 [1st Dept 2010]; Escourse v City of New York, 27 AD3d 319 [1st Dept 2006]).
In any event, denial of the motion to strike would not have constituted an abuse of discretion, given that the City ultimately complied with the order to produce the City employee a month after the court-ordered deadline (see Nussbaum v D'Amico, 29 AD3d 449 [1st Dept 2006]), and the City's conduct during pre-note of issue discovery proceedings did not amount to willful and contumacious behavior (see Glaser v City of New York, 79 AD3d 600 [1st Dept 2010]). The court properly considered the City's opposition papers, given that plaintiff has not shown prejudice by the late service, and had, in fact, submitted reply and supplemental reply affirmations (see Prato v Arzt, 79 AD3d 622 [1st Dept 2010]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 24, 2013
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