

Rosenbaum v Festinger (2017 NY Slip Op 04872)





Rosenbaum v Festinger


2017 NY Slip Op 04872


Decided on June 14, 2017


Appellate Division, Second 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 June 14, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

CHERYL E. CHAMBERS, J.P.
SHERI S. ROMAN
ROBERT J. MILLER
FRANCESCA E. CONNOLLY, JJ.


2015-02207
 (Index No. 50373/13)

[*1]Charnie Rosenbaum, respondent, 
vSamuel Festinger, also known as Roger Hess, also known as Allan Gold, also known as Jacob Festinger, also known as William Goodman, also known as Andy Lipton, appellant.


Zvi A. Storch, Brooklyn, NY, for appellant.
Snitow Kanfer & Holtzer, LLP, New York, NY (Franklyn H. Snitow and Elliot J. Rosner of counsel), for respondent.

DECISION & ORDER
Appeal from an order of the Supreme Court, Kings County (Rachel A. Adams, J.), dated December 30, 2014. The order granted those branches of the plaintiff's motion which were pursuant to CPLR 3126 to preclude the defendant from offering evidence at trial as to his financial circumstances unless he complied with certain discovery requests and for an award of counsel fees.
ORDERED that the order is affirmed, with costs.
The defendant's argument that the plaintiff's motion for a conditional order of preclusion based on his failure to comply with discovery demands should have been denied for the failure to file an affirmation of good faith is not properly before this Court because it was not raised in opposition to the motion (see Pepenella v Brumar Day Spa Corp., 143 AD3d 876, 877; Mariano v Fiorvante, 118 AD3d 961, 962).
The Supreme Court providently exercised its discretion in awarding counsel fees to the plaintiff for the necessity of bringing the motion (see CPLR 3126).
The defendant's remaining contentions are without merit.
CHAMBERS, J.P., ROMAN, MILLER and CONNOLLY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


