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NEW GPC INC., Plaintiff–Respondent, v. KAIETEUR NEWSPAPER INC., Defendant–Appellant.

Decided: June 25, 2015

FRIEDMAN, J.P., ANDRIAS, SAXE, RICHTER, GISCHE, JJ. Law Offices of James F. Sullivan, P.C., New York (Giovanna Tuttolomondo of counsel), for appellant. Ray Beckerman, P.C., Forest Hills (Ray Beckerman of counsel), for respondent.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered February 27, 2015, which denied defendant's motion to dismiss the complaint pursuant to CPLR 3126, unanimously affirmed, with costs.

On August 15, 2014, defendant served supplemental discovery demands concerning compensatory damages on plaintiff, and by court order, dated August 21, 2014, plaintiff's responses were due on September 24, 2014. However, on November 3, 2014, the parties entered into a stipulation permitting plaintiff to file an amended complaint that removed plaintiff's claims for compensatory damages. After plaintiff communicated that it no longer intended to respond to defendant's supplemental discovery requests because the issue of compensatory damages was moot, defendant moved to dismiss by striking plaintiff's complaint, pursuant to CPLR 3126, on the ground that plaintiff failed to comply with the August 21, 2014 order.

The court did not abuse its discretion in denying the motion (148 Magnolia, LLC v. Merrimack Mut. Fire Ins. Co., 62 AD3d 486, 487 [1st Dept 2009] ). Defendant failed to demonstrate that plaintiff engaged in a pattern of violating court orders on discovery, that plaintiff's conduct has been willful or contumacious, or that plaintiff acted in bad faith (Christian v. City of New York, 269 A.D.2d 135, 136–137 [1st Dept 2000] ).

We have considered defendant's remaining contentions and find them unavailing.