ABC Meats, Inc. v. Marine Midland Bank

We conclude that Supreme Court properly directed a substitution of parties. The 1983 agreement, reasonably construed, transferred all assets of Shop the ABC Way except accounts receivable.

The court erred, however, in imposing a conditional order of preclusion upon Wholesale Foods for two reasons. First, defendant did not seek to preclude Wholesale Foods; it sought to preclude ABC Meats based upon that party’s failure to respond adequately to a second set of interrogatories. Second, the interrogatories were not served upon Wholesale Foods, and Wholesale Foods was not a party to the action. Wholesale Foods was not subject to a CPLR 3126 order of preclusion (see, Durst, Fuchsberg and Kleiner, Modern New York Discovery § 16:17). (Appeal from order of Supreme Court, Erie County, Joslin, J. — substitute party.) Present — Dillon, P. J., Denman, Green, Balio and Lawton, JJ.