New York Supreme and/or Appellate Courts Appellate Division, First Department
April 4, 2013
SUFFOLK P.E.T. MANAGEMENT, LLC, ET AL.,
AZAD K. ANAND, M.D., ET AL.,
Suffolk P.E.T. Mgt., LLC v Anand
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 April 4, 2013
Tom, J.P., Andrias, Saxe, Abdus-Salaam, Gische, JJ.
Order, Supreme Court, New York County (Bernard J. Fried, J.), entered July 16, 2012, which granted plaintiff's motion to confirm the report of the Special Referee recommending that defendants' answer be stricken for noncompliance with discovery orders and directives and that a default judgment be entered against defendants on liability, and referred the matter to a special referee to hear and report on the issue of damages, unanimously affirmed, without costs.
The motion was properly granted inasmuch as the record supports the findings that defendants engaged in willful and contumacious conduct by their failure to comply with the court's discovery orders and directives (see CPLR 3126; Jones v Green, 34 AD3d 260 [1st Dept 2006]; Hot & Tasty Corp. v IOB Realty, 270 AD2d 67 [1st Dept 2000]). There exists no basis to disturb the credibility determinations made by the Special Referee (see Matter of Continental Cas. Co. v Lecei, 65 AD3d 931 [1st Dept 2009]).
Here, while defendants produced much documentation during discovery, a forensic study of defendants' computer hard drives revealed evidence that conflicted with defendants' assertions that all relevant documents, including electronic information, had been produced. Many of the records that plaintiffs sought and were not provided with were material to plaintiffs' case, and were required to be maintained by defendants, as per the parties' contract. The evidence further shows that defendants, over a two-year period, failed to conduct timely searches for requested documents, failed to preserve material documents despite an awareness of the action and otherwise affirmatively interfered with plaintiffs' efforts to collect discoverable material. Moreover, defendants were alerted to the potential consequences of incomplete disclosure during the several hearings conducted by the court on the discovery issues.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 4, 2013
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