MICHAEL DEVEREAUX ASSOCIATES v. John Russell et al., Defendants. (2023)

Order, Supreme Court, New York County (Suzanne Adams, J.), entered March 6, 2023, which granted defendants John Tufo and Janice Tufo's motion to compel plaintiff to produce previously exchanged disclosure, unanimously affirmed, with costs.  Appeal from order, same court and Justice, entered March 8, 2023, which granted defendants’ motion for a stay of trial pending the outcome of the motion to compel, unanimously dismissed, without costs, as abandoned.

Supreme Court providently exercised its discretion in compelling plaintiff to provide defendants with all previously exchanged discovery and nonprivileged legal files, even after the filing of the note of issue and certificate of rediness.  The sudden death of defendants’ prior counsel after years of litigation (see Michael J. Devereaux & Assoc., P.C. v. Tufo, 192 A.D.3d 506, 140 N.Y.S.3d 401 [1st Dept. 2021]), and their new counsel's inability to obtain their case file, constitute unusual or unanticipated circumstances warranting the relief requested (see 22 NYCRR 202.21[d];  Wiebusch v. Bethany Mem. Reform Church, 51 A.D.3d 577, 577–578, 859 N.Y.S.2d 63 [1st Dept. 2008]).  Furthermore, the record shows that defendants acted promptly by securing new representation within 37 days of their prior counsel's death, that their newly retained counsel immediately sought to compel production of the previously exchanged discovery upon realizing that it was missing, and that plaintiff would not voluntarily provide the requested discovery.