

Cps 227 LLC v Brody (2016 NY Slip Op 00446)





Cps 227 LLC v Brody


2016 NY Slip Op 00446


Decided on January 26, 2016


Appellate Division, First Department


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 January 26, 2016

Friedman, J.P., Renwick, Saxe, Moskowitz, JJ.


654378/13 -18 17 16

[*1]CPS 227 LLC, Plaintiff-Respondent,
vMartin Brody, etc., Defendant-Appellant.


Wenig Saltiel LLP, Brooklyn (Charles L. Mester of counsel), for appellant.
Schlam Stone & Dolan, LLP, New York (Richard H. Dolan of counsel), for respondent.

Judgment, Supreme Court, New York County (Eileen Bransten, J.), entered June 9, 2015, in plaintiff's favor against defendant, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered June 4, 2015, which granted plaintiff's motion to enforce a conditional discovery order by striking defendant's answer and to award him a default judgment against defendant, and for attorneys' fees and costs, and denied as moot defendant's cross motion for summary judgment dismissing the complaint, unanimously dismissed, without costs, as subsumed in the appeal from the aforesaid judgment.
Supreme Court properly struck defendant's answer based on its finding that he failed to comply with a conditional order requiring compliance with discovery demands, and his pattern of disobeying discovery orders (see Fish & Richardson, P.C. v Schindler, 75 AD3d 219 [1st Dept 2010]). It also properly awarded plaintiff its attorneys' fees and costs as a result of defendant's discovery abuses. As plaintiff was entitled to have the answer struck and a default judgment entered on the complaint, the court properly awarded the sum alleged in the complaint without ordering an inquest, and correctly declined to consider the merits of defendant's cross motion for summary judgment (see AWL Indus., Inc. v QBE Ins. Corp., 65 AD3d 904 [1st Dept 2009]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 26, 2016
CLERK


