GREENBERG v. MONTALVO (2002)

Order, Supreme Court, New York County (Edward Lehner, J.), entered July 31, 2001, denying plaintiff's motion for summary judgment or, in the alternative, an order sanctioning defendant for noncompliance with court-ordered discovery, unanimously affirmed, without costs.

In this action between podiatrists to recover amounts allegedly billed to insurance carriers in defendant's name for services rendered by defendant to plaintiff's patients, which amounts, pursuant to the agreement alleged by plaintiff, should have been assigned by defendant to plaintiff, summary judgment, sought upon the ground that defendant, in alleged violation of court-ordered discovery, has withheld material within his exclusive control essential to plaintiff's case, was properly denied.   There are triable issues as to the billing procedures employed by the parties and thus as to the validity of plaintiff's claim that information necessary to his case is in fact in defendant's exclusive control.   Moreover, defendant's affidavit, stating that he possesses no additional responsive documentation, is adequate to fulfill his obligations under the allegedly violated discovery order.   Accordingly, sanctions against defendant are not warranted at this time (see, Citibank v. Johnson, 206 A.D.2d 942, 615 N.Y.S.2d 180).   However, if any such information should be forthcoming by the time of trial, an appropriate sanction can be imposed by the trial court.