PETTINATO v. OldCastle BuildingEnvelope, Inc., Defendant. (2024)

Order, Supreme Court, New York County (Francis A. Kahn, III, J.), entered February 9, 2023, which, to the extent appealed from as limited by the briefs, denied defendants-appellants' (EQR defendants) and plaintiffs' motions to strike defendant River Tower Owner, LLC's (Owner) answer, unanimously affirmed, without costs.

Supreme Court providently exercised its discretion in denying the motions to strike Owner's answer (see Those Certain Underwriters at Lloyds, London v. Occidental Gems, Inc., 11 N.Y.3d 843, 845, 873 N.Y.S.2d 239, 901 N.E.2d 732 [2008];  148 Magnolia, LLC v. Merrimack Mut. Fire Ins. Co., 62 A.D.3d 486, 487, 878 N.Y.S.2d 727 [1st Dept. 2009];  see also CPLR 3126[3]).  In response to numerous discovery demands, Owner advised that the EQR defendants, as the previous owner, along with nonparties GreenOak Real Estate Advisors, LP and GreenOak Property Management, LP (collectively, GreenOak), and Slate Property Group, would be in possession of the requested items.  Pursuant to a court-ordered stipulation, Owner also provided a Jackson affidavit from Slate's director of property management, who averred that Slate assumed all records relating to the apartment from the EQR defendants, and that Slate was not in possession of any videos, photographs, or documents in any format with respect to inspections performed prior to the accident.  Moreover, in response to plaintiffs' subpoenas to Slate and GreenOak, GreenOak served their response and provided a copy of the due diligence file, and Slate served its response and included a copy of the property condition assessment report, phase 1 environmental site assessment report, and emails with attachments.  Because Owner was created in name only, through which Slate purchased the building, and had no employees, Slate and GreenOak were the entities in possession of the relevant demanded discovery, which was provided by them to plaintiffs and the EQR defendants.

Neither plaintiffs nor the EQR defendants offered evidence that Owner had or controlled the discovery items that Owner stated it did not possess.  In fact, the EQR defendants and plaintiffs acknowledged that the requested discovery was neither generated nor maintained by Owner, but by nonparties Slate and GreenOak.  The fact that plaintiffs and the EQR defendants do not believe that Slate and GreenOak turned over their entire files is of no moment (see Calcados Samello, S.A. v. Intershoe Inc., 78 A.D.2d 796, 796, 433 N.Y.S.2d 3 [1st Dept. 1980]).