DESILVO v. Splen Construction, Inc., respondent. (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Rupert V. Barry, J.), dated October 30, 2024.  The order, insofar as appealed from, granted that branch of the cross-motion of the defendant Splen Construction, Inc., which was, in effect, pursuant to 22 NYCRR 130–1.1 to recover costs and attorneys' fees from the plaintiff's attorneys and granted that defendant's oral application to strike the complaint insofar as asserted against it.

ORDERED that the appeal from so much of the order as granted that branch of the cross-motion of the defendant Splen Construction, Inc., which was, in effect, pursuant to 22 NYCRR 130–1.1 to recover costs and attorneys' fees from the plaintiff's attorneys is dismissed, as the plaintiff is not aggrieved by those portions of the order (see CPLR 5511;  Whelan v. Busiello, 240 AD3d 826);  and it is further,

ORDERED that on the Court's own motion, the notice of appeal from so much of the order as granted the oral application of the defendant Splen Construction, Inc., to strike the complaint insofar as asserted against it is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c] );  and it is further,

ORDERED that the order is reversed insofar as reviewed, on the law, and the oral application of the defendant Splen Construction, Inc., to strike the complaint insofar as asserted against it is denied;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

In September 2022, the plaintiff commenced this personal injury action against the defendant Splen Construction, Inc. (hereinafter Splen), among others.  Between February 2023 and February 2024, the plaintiff made multiple motions, inter alia, to strike Splen's answer for failure to comply with certain discovery obligations.  In orders dated September 11, 2023, December 11, 2023, January 22, 2024, and March 4, 2024, the Supreme Court denied the plaintiff's motions, determining that the plaintiff failed to make the required showings of good faith pursuant to 22 NYCRR 202.7(c) and/or 202.20–f. In the order dated March 4, 2024, the court stated that it reserved the right to direct a sanctions hearing if the plaintiff's motions continued to lack a good-faith basis for the requested relief.

In March 2024, the plaintiff again moved, among other things, to strike Splen's answer.  By notice of cross-motion dated March 26, 2024, Splen cross-moved, inter alia, in effect, pursuant to 22 NYCRR 130–1.1 to recover costs and attorneys' fees from the plaintiff's attorneys and pursuant to CPLR 3103 for a protective order to strike the plaintiff's demands and deposition notices and to deem all further discovery from Splen waived as to the plaintiff.  Thereafter, the Supreme Court directed a hearing on that branch of the cross-motion which was pursuant to 22 NYCRR 130–1.1. On August 5, 2024, the court held a hearing on that branch of the cross-motion.  In an order dated October 30, 2024, the court, among other things, granted that branch of Splen's cross-motion which was, in effect, pursuant to 22 NYCRR 130–1.1 to recover costs and attorneys' fees from the plaintiff's attorneys and granted Splen's oral application to strike the complaint insofar as asserted against it.  The plaintiff appeals.

Initially, under the circumstances of this case, we take judicial notice of the transcript of the hearing held before the Supreme Court on August 5, 2024, which is in the record on a related appeal (see DeSilvo v. Splen Construction, Inc. ––– AD3d –––– [decided herewith];  see generally Long v. State of New York, 7 NY3d 269, 275).  Contrary to the plaintiff's contention, the court did not, sua sponte, strike the complaint insofar as asserted against Splen, as Splen requested that relief during the hearing on August 5, 2024.

Nevertheless, the Supreme Court should not have granted Splen's oral application to strike the complaint insofar as asserted against it.  Although Splen alleged that the plaintiff made multiple frivolous motions, the record on this appeal does not establish that the plaintiff refused to obey an order for disclosure or willfully failed to disclose information which the court found ought to have been disclosed (see CPLR 3126;  Carnegie Assoc.  Ltd. v. Miller, 94 AD3d 404).  Accordingly, CPLR 3126 does not apply (see Carnegie Assoc.  Ltd. v. Miller, 94 AD3d at 405;  see also Kane v Triborough Bridge & Tunnel Auth., 40 AD3d 1040, 1041;  Gabrelian v. Gabrelian, 108 A.D.2d 445, 452;  Karutz v. Chicago Tit. Ins. Co., 112 Misc.2d 815, 818–820 [App Term, 2d Dept] ).

Finally, the appeal from so much of the order dated October 30, 2024, as granted that branch of Splen's cross-motion which was, in effect, pursuant to 22 NYCRR 130–1.1 to recover costs and attorneys' fees from the plaintiff's attorneys must be dismissed.  The plaintiff is not aggrieved by the imposition of costs and attorneys' fees upon her attorneys (see CPLR 5511;  Scopelliti v. Town of New Castle, 92 N.Y.2d 944;  Whelan v. Busiello, 240 AD3d at 826;  Consumer Protection Restoration, LLC v Hickory House Tenants Corp., 236 AD3d 742, 744;  Reich v. Redley, 234 AD3d 1000, 1001).

The parties' remaining contentions need not be reached in light of our determination.

CONNOLLY, J.P., CHRISTOPHER, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.