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Bruce R. Bryan

Reversal and Remand

Brett Butler, et al., Plaintiffs-Respondents,

v

Knights Collision Experts, Inc., et al., Defendants-Appellants.

Margolin & Pierce, LLP, New York (Errol F. Margolin of counsel), for appellants.

Pedowitz & Meister, LLP, New York (Robert A. Meister of counsel), for respondents.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered December 12, 2017, which, to the extent appealed from as limited by the briefs, granted plaintiffs’ motion for discovery sanctions to the extent of deeming all liability issues resolved in their favor, unanimously reversed, on the law and the facts, without costs, and the motion denied. Order, same court and Justice, entered January 9, 2018, which denied as academic defendants’ motion for partial summary judgment, unanimously reversed, on the law, without costs, and the matter remanded to the motion court for a determination of the motion on the merits. Appeal from order, same court and Justice, entered February 7, 2018, which denied defendants’ motion to renew, unanimously dismissed, without costs, as academic.

Plaintiffs failed to establish that defendants’ conduct during discovery was willful, contumacious or in bad faith (see Lee v 13th St. Entertainment LLC, 161 AD3d 631 [1st Dept 2018]; Palmenta v Columbia Univ., 266 AD2d 90 [1st Dept 1999). At the time the motion was made, defendants were in violation of a single court order. Moreover, the court improvidently exercised its discretion in imposing the sanction nine months after plaintiffs brought their motion, when discovery had been completed and the note of issue filed.

In light of this determination, the denial of defendants’ motion for summary judgment must be reversed and the motion remanded for a determination on the merits.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 2, 2018

CLERK

B. Bryan, "Defendant's Guide to Criminal Appeals, Review & Parole in New York," (2005)


Guide to Criminal Appeals, Review & Parole in New York | Bryan Criminal Appeals Lawyer NY

The object of appellate advocacy is to persuade. The winning advocate focuses the court on the strength of your case. Read More

Cornell Adjunct Professor of Law


Guide to Criminal Appeals, Review & Parole in New York | Bryan Criminal Appeals Lawyer NY

As an adjunct faculty, Professor Bryan teaches "Advanced Persuasive Writing and Appellate Advocacy" to second and third year law students at Cornell Law School. Read More