INTEGRATED VOICE & DATA SYSTEMS, INC., DOING BUSINESS AS COMTEL, AND COMTEL VOIP, INC., PLAINTIFFS-RESPONDENTS,
MICHAEL GROH, FRANK LEWANDOWSKI AND AT TECHNOLOGY, INC., DEFENDANTS-APPELLANTS. (APPEAL NO. 1.)
CHIACCHIA & FLEMING, LLP, HAMBURG (LISA A. POCH OF
COUNSEL), FOR DEFENDANT-APPELLANT MICHAEL GROH.
MATHIAS WEXLER FRIEDMAN LLP, BUFFALO (KEVIN BURKE OF
COUNSEL), FOR DEFENDANT-APPELLANT FRANK LEWANDOWSKI.
SCHRÖDER, JOSEPH & ASSOCIATES, LLP, BUFFALO (LINDA
H. JOSEPH OF COUNSEL), FOR DEFENDANT-APPELLANT AT TECHNOLOGY,
KAVINOKY COOK LLP, BUFFALO (KELLY E. GUERIN OF COUNSEL), FOR
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.
from an order of the Supreme Court, Erie County (Timothy J.
Walker, A.J.), entered August 3, 2015. The order, among other
things, struck defendants' answers, granted a permanent
injunction against defendants, and imposed a monetary
sanction against defendants.
hereby ORDERED that the order so appealed from is unanimously
modified on the law by reinstating the answers, vacating the
permanent injunction, and vacating the monetary sanction
imposed against defendant AT Technology, Inc., and as
modified the order is affirmed without costs.
Plaintiffs and defendant AT Technology, Inc. (AT) are
providers of commercial telecommunications services to
businesses in the Buffalo area. The individual defendants,
Michael Groh and Frank Lewandowski, are plaintiffs'
former employees. Groh resigned from his employment with
plaintiffs and accepted a position with AT in 2012, and
Lewandowski likewise did so in 2014. Shortly after
Lewandowski's departure, plaintiffs commenced this action
alleging, inter alia, that while he was in plaintiffs'
employ, Lewandowski obtained customer lists and other
confidential information from plaintiffs, which he provided
to the other defendants. Among the items of relief sought in
the complaint are preliminary and permanent injunctions
restraining defendants from obtaining, disclosing or
utilizing plaintiffs' confidential and proprietary
information, and from soliciting plaintiffs' customers or
otherwise interfering with plaintiffs' relationships with
defendants failed to respond to plaintiffs' first notice
for discovery and inspection, plaintiffs moved to compel
production of the requested items. Defendants did not timely
respond to the motion, and Supreme Court directed the
discovery process to proceed in two phases. When defendants
failed to meet the deadline in the Phase Two Order,
plaintiffs moved for costs and sanctions. Defendants did not
timely respond to that motion, but while the motion was
pending, defendants produced the items sought by plaintiffs,
with the exception of an electronic device or devices, the
existence of which is disputed by the parties. The court
nevertheless struck defendants' answers, granted the
permanent injunctions sought in the first and second causes
of action, and imposed a monetary sanction against defendants
outset, we agree with AT that the court erred in awarding any
relief against it for violating the Phase Two Order inasmuch
as that order required only the individual defendants to
produce the items sought by plaintiffs. We also agree with
the individual defendants that the court abused its
discretion in striking their answers. "Although the
nature and degree of a sanction for a party's failure to
comply with discovery generally is a matter reserved to the
sound discretion of the trial court, the drastic remedy of
striking an answer is inappropriate absent a showing that the
failure to comply is willful, contumacious, or in bad
faith" (Green v Kingdom Garage Corp., 34 A.D.3d
1373, 1374). Plaintiffs made no such showing here. Indeed,
apart from one or more disputed items, the individual
defendants fully complied, albeit tardily, with the Phase Two
Order while the motion for sanctions was pending. In
addition, while those defendants engaged in dilatory conduct
that prompted plaintiffs to seek the court's assistance
on more than one occasion, the drastic sanction of striking
their answers "provided plaintiff[s] with more relief
than was necessary to protect [their] interests"
(Gaylord Bros. v RND Co., 134 A.D.2d 848, 849).
defendants' answers unconditionally, moreover, was more
relief than plaintiffs sought in their motion.
Plaintiffs' motion for costs and sanctions, inter alia,
requested an order striking the answers, "provided,
however, that Plaintiffs request that this part of the motion
for relief be held in abeyance pending further proceedings in
this matter." In the event of defendants' continued
failure, inter alia, to comply with the court's
directives, plaintiffs requested that the court
"immediately schedule a hearing on Plaintiffs'
request for this relief, " i.e., striking the answers.
as the court erred in striking defendants' answers, there
was no basis for granting the permanent injunction sought in
the first and second causes of action. We therefore modify
the order by reinstating the answers, vacating the ...