CONTINENTAL INDUSTRIES GROUP INC v. USTUNTAS (2019)

Order, Supreme Court, New York County (Andrea Masley, J.), entered June 18, 2018, which, inter alia, granted defendants' motion for discovery sanctions and awarded attorneys' fees and costs, unanimously affirmed, with costs.

The motion court's decision was a provident exercise of discretion (see generally Arts4All, Ltd. v. Hancock, 54 A.D.3d 286, 863 N.Y.S.2d 193 [1st Dept. 2008], affd 12 N.Y.3d 846, 881 N.Y.S.2d 390, 909 N.E.2d 83 [2009], cert denied 559 U.S. 905, 130 S.Ct. 1301, 175 L.Ed.2d 1076 [2010] ).  The record demonstrates that plaintiff exhibited a continued pattern of noncompliance without any excuse, and provided ever-changing and irreconcilable statements with respect to the unavailability of documents.  Such conduct sufficiently supports a finding that plaintiff intentionally made the requested emails unavailable to defendants (see Fish & Richardson, P.C. v. Schindler, 75 A.D.3d 219, 901 N.Y.S.2d 598 [1st Dept. 2010] ).  Furthermore, plaintiff's conduct over more than five years deprived defendants of the opportunity to take meaningful discovery and present a full defense, and caused defendants to expend an unnecessary amount of time and resources (see Pegasus Aviation I., Inc. v. Varig Logistica, S.A., 26 N.Y.3d 543, 26 N.Y.S.3d 218, 46 N.E.3d 601 [2015] ).