DIAMOND v. WWP OFFICE LLC (2022)

Supreme Court, Appellate Division, First Department, New York.

Mary DIAMOND, Plaintiff–Respondent, v. WWP OFFICE, LLC, et al., Defendants–Appellants.

15286

Decided: February 10, 2022

Gische, J.P., Kern, Moulton, Kennedy, Rodriguez, JJ.

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 A.D.3d 510, 514, 69 N.Y.S.3d 294 [1st Dept. 2018]).

Defendants failed to show that “unusual or unanticipated 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 A.D.3d 1192, 1193, 84 N.Y.S.3d 448 [1st Dept. 2018]).

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