OPPENHEIM v. Joseph Viscuso, Defendant. (2010)

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered on or about April 23, 2009, which, to the extent appealed from, granted the Mojo-Stumer defendants' motion for spoliation sanctions but declined to strike the complaint, denied plaintiffs' cross motion for summary judgment to dismiss the counterclaim for wrongful termination of contract, and granted said defendants' motion for a protective order, unanimously modified, on the law, plaintiffs' expert's report precluded, but he is permitted to testify solely as a fact witness, the cross motion granted and the counterclaim for wrongful termination dismissed, and otherwise affirmed, without costs.

Plaintiffs spoliated evidence central to their claim that renovations on their apartment, designed by Mojo-Stumer and to be performed by defendant Viscuso's general contracting firm (Vista), were not complete when they invited a new contractor to perform substantial additional work without first permitting defendants to verify the need for such additions, warranting a sanction (see 430 Park Ave. Co. v. Bank of Montreal, 9 AD3d 320 [2004] ). However, because defendants had extensive personal knowledge of the status of the job, and indeed had repeatedly certified completion of various stages of the work, they were still able to offer a meaningful defense (id.; see also Kirschen v. Marino, 16 AD3d 555 [2005] ). As such, the appropriate sanction was preclusion of plaintiffs' witness as an expert, but not as a fact witness.

The counterclaim for wrongful termination should have been dismissed in light of the individual defendants' convictions for bribery and tax evasion in connection with this renovation contract (see Black v. MTV Networks, 172 A.D.2d 8 [1991], lv dismissed 79 N.Y.2d 915 [1992] and lv denied sub nom. Black v. Viacom Intl., 80 N.Y.2d 757 [1992] ).

The court appropriately granted defendants' motion to treat discovery in this matter as confidential, which is standard in commercial cases (see Mann v. Cooper Tire Co., 56 AD3d 363, 365 [2008] ).