LLP v. Kahn Gordon Timko & Rodriguez, P.C., et al., Defendants, Edward A. Lemmo, et al., Defendants–Respondents.

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

Ripka Rotter & King, LLP, Plaintiff–Appellant, v. Kahn Gordon Timko & Rodriguez, P.C., et al., Defendants, Edward A. Lemmo, et al., Defendants–Respondents.

4935N

Decided: April 28, 2011

Gonzalez, P.J., Sweeny, Moskowitz, Acosta, Manzanet–Daniels, JJ. Clausen Miller P.C., New York (Jeffrey W. Varcadipane of counsel), for appellant. Law Offices of Sanford F. Young, P.C., New York (Sanford F. Young of counsel), for respondents.

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Order, Supreme Court, New York County (Jane S. Solomon, J.), entered January 12, 2011, which, insofar as appealed from as limited by the briefs, held that plaintiff waived its right to certain discovery and issued a conditional order of preclusion against plaintiff, unanimously reversed, on the law and the facts, without costs and the order vacated.

The court's imposition of discovery sanctions pursuant to CPLR 3126 against plaintiff was improper, since plaintiff had not been afforded notice that such sanctions could result (see Cherokee Owners Corp. v. DNA Contr., LLC, 74 AD3d 411, 411–412 [2010];  Warner v. Houghton, 43 AD3d 376 [2007], affd 10 NY3d 913 [2008];  see also Allstate Ins. Co. v. Buziashvili, 71 AD3d 571 [2010] ).   Plaintiff's conduct was not willful, contumacious or undertaken in bad faith (see Campione v. New Hampshire Ins. Co., 76 AD3d 484 [2010] ), and there was no pattern of willful noncompliance with discovery obligations (cf.  Bryant v. New York City Hous. Auth., 69 AD3d 488, 489 [2010] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK