Diamond v. WWP Off., LLC

Diamond v WWP Off., LLC (2022 NY Slip Op 00939)

Diamond v WWP Off., LLC

2022 NY Slip Op 00939

Decided on February 10, 2022

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 and Entered: February 10, 2022
Before: Gische, J.P., Kern, Moulton, Kennedy, Rodriguez, JJ.
Index No. 153632/13 Appeal No. 15286 Case No. 2021-00238

London Fischer LLP, New York (Amy Kramer of counsel), for appellants.

Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered December 21, 2020, which, to the extent appealed from as limited by the briefs, denied defendants' motion to strike the complaint or, in the alternative, compel plaintiff to provide certain discovery, unanimously affirmed, without costs.

Defendants failed to show that plaintiff willfully and contumaciously refused to comply with discovery orders which warranted striking the complaint (see CPLR 3126; see Watson v City of New York, 157 AD3d 510, 514 [1st Dept 2018]).

Defendants failed to show that "unusual or anticipated circumstances" developed after the note of issue was filed that warranted additional post-note of issue discovery concerning the back injury plaintiff sustained before the subject accident since they

were aware of that injury for three years prior to filing the note of issue (see 22 NYCRR 202.21 [d]; Drapper v Horan, 164 AD3d 1192, 1993 [1st Dept 2018]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 10, 2022