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Grasso v. McCoy

Supreme Court of New York, Fourth Department

January 3, 2014

Barbara Grasso, PLAINTIFF-APPELLANT,
v.
Robert McCoy, DEFENDANT-RESPONDENT.

Appeal from an order of the Supreme Court, Herkimer County (Erin P. Gall, J.), entered September 18, 2012. The order, inter alia, granted the motion of defendant to strike the amended complaint.

BARBARA GRASSO, PLAINTIFF-APPELLANT PRO SE.

FRYE & CARBONE LLC, UTICA (RICHARD A. FRYE OF COUNSEL), FOR DEFENDANT-RESPONDENT.

PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND SCONIERS, JJ.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied and the amended complaint is reinstated.

Memorandum: Plaintiff commenced this action seeking, inter alia, imposition of a constructive trust on real property owned by defendant. Supreme Court erred in granting defendant's motion to strike the amended complaint pursuant to CPLR 3126 based upon plaintiff's failure to respond to discovery demands. The affirmation submitted by defendant's attorney in support of the motion failed to demonstrate that he "ha[d] conferred with counsel for [plaintiff] in a good faith effort to resolve the issues raised by the motion" (Uniform Rule for Trial Cts [22 NYCRR] § 202.7 [a] [2]; see Kane v Shapiro, Rosenbaum, Liebschutz, & Nelson, L.L.P., 57 A.D.3d 1513, 1513-1514). The conclusory assertions in the affirmation do not refer to any specific efforts or communications with plaintiff's attorney "that would evince a diligent effort by [defendant] to resolve the discovery dispute" (Mironer v City of New York, 79 A.D.3d 1106, 1108; see 241 Fifth Ave. Hotel, LLC v GSY Corp., 110 A.D.3d 470, 472), nor do those assertions support defendant's contention that he is excused from complying with the rule because "any effort to resolve the present dispute non-judicially would have been futile' " (Carrasquillo v Netsloh Realty Corp., 279 A.D.2d 334, 334; see Yargeau v Lasertron, 74 A.D.3d 1805, 1806).


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