        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

840
CA 12-01794
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


VAN SHARMA, INC., PLAINTIFF-APPELLANT,

                    V                                MEMORANDUM AND ORDER

GEORGE A. CHAMBERLAIN, DEFENDANT-RESPONDENT.


FRANK A. ALOI, ROCHESTER, FOR PLAINTIFF-APPELLANT.

BECKERMAN AND BECKERMAN, LLP, ROCHESTER (GERALD BECKERMAN OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Evelyn
Frazee, J.), entered March 7, 2012. The order, among other things,
precluded plaintiff from offering evidence in opposition to
defendant’s counterclaims.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking the
imposition of a constructive trust in rental premises owned by
defendant and leased and maintained by plaintiff, as well as an
accounting of funds received by defendant and the return of certain
funds to plaintiff. Defendant asserted counterclaims alleging, inter
alia, that plaintiff withheld monies from him relating to the rental
premises, and served a notice to produce on plaintiff. Plaintiff did
not serve a responsive pleading with respect to the counterclaims nor
did plaintiff respond to the notice to produce, and defendant moved to
compel disclosure. Supreme Court granted defendant’s motion to compel
and issued a conditional order of preclusion with respect to the
complaint and the counterclaims. Defendant did not receive a response
to the notice to produce, and subsequently moved for dismissal of the
complaint and judgment in the amount sought on his counterclaims based
on plaintiff’s default or, alternatively, for summary judgment on his
counterclaims. Plaintiff in turn moved to vacate the default on the
ground that it had provided the responses in compliance with the
preclusion order and they had been lost in the mail. The court
granted judgment on the counterclaims based on plaintiff’s “default in
pleading,” and following a hearing the court also granted defendant’s
motion insofar as it sought dismissal of the complaint based on
plaintiff’s failure to provide a timely and sufficient response to the
notice to produce. We affirm.

     Plaintiff’s contention that the court erred in failing to hold an
                                 -2-                           840
                                                         CA 12-01794

inquest to determine the amount of damages sought in the counterclaims
is not preserved for our review and, in any event lacks merit. An
inquest was not required inasmuch as defendant sought a sum certain,
and plaintiff was precluded from introducing any evidence in
opposition to defendant’s computation (see CPLR 3215 [a]; see also
Rokina Opt. Co. v Camera King, 63 NY2d 728, 730). Plaintiff likewise
failed to preserve for our review its contentions regarding the scope
of the preclusion order inasmuch as plaintiff did not oppose
defendant’s motion to compel (see Howard Rosengarten, P.C. v Hott, 49
AD3d 328, 328-329; see also Congleton v United Health Servs. Hosps.,
67 AD3d 1148, 1150). Even assuming, arguendo, that plaintiff timely
responded to the notice to produce, we conclude that the court neither
abused nor improvidently exercised its discretion in determining that
plaintiff’s responses were insufficient (see Radder v CSX Transp.,
Inc., 68 AD3d 1743, 1745).

     Contrary to plaintiff’s further contention, the court properly
determined that the proffered defense of law office failure was
without merit. Plaintiff’s contention that its response to the notice
to produce was lost in the mail was not corroborated and therefore did
not constitute “ ‘a reasonable excuse for the default’ ” (Hann v
Morrison, 247 AD2d 706, 707; cf. Papandrea v Acevedo, 54 AD3d 915,
916; Cole v Delcamp, 288 AD2d 850, 851). We have reviewed plaintiff’s
remaining contentions and conclude that they are without merit.




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
