CDJ CORP v. COMMODORE MANUFACTURING CORP

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

CDJ CORP., appellant, v. COMMODORE MANUFACTURING CORP., respondent.

Decided: April 29, 2008

WILLIAM F. MASTRO, J.P., DAVID S. RITTER, EDWARD D. CARNI, and RANDALL T. ENG, JJ. Daniel S. Perlman, New York, N.Y., for appellant. Robinwitz, Cohlan, Dubow & Doherty, White Plains, N.Y. (Bruce Minkoff of counsel), for respondent.

In an action, inter alia, to recover damages for work, labor, and services performed, the plaintiff appeals from (1) so much of an order of the Supreme Court, Kings County (Lewis, J.), dated September 5, 2003, as granted that branch of the defendant's motion pursuant to CPLR 3126 which was to direct it to produce certain cancelled checks and to preclude it from submitting evidence with respect to its costs “for which cancelled checks have not been produced,” and (2) so much of an order of the same court dated October 6, 2006, as, upon its failure to produce the cancelled checks, granted that branch of the defendant's motion which was for summary judgment dismissing the complaint.

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.

 The plaintiff's repeated noncompliance with court orders directing it to produce cancelled checks demonstrating its labor costs in connection with a construction contract, together with inadequate excuses therefor, warranted a finding that the plaintiff's noncompliance was willful and contumacious (see Reid v. Schoenthal, 288 A.D.2d 203, 732 N.Y.S.2d 580;  Frias v. Fortini, 240 A.D.2d 467, 658 N.Y.S.2d 435;  Garcia v. Kraniotakis, 232 A.D.2d 369, 648 N.Y.S.2d 156).

 Upon preclusion of this evidence, the plaintiff would have been unable to make a prima facie showing of its damages.   Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the complaint (see Callaghan v. Curtis, 48 A.D.3d 501, 852 N.Y.S.2d 275;  Trataros Constr. Inc. v. New York City School Constr. Auth., 46 A.D.3d 872, 849 N.Y.S.2d 582;  Contarino v. North Shore Univ. Hosp. at Glen Cove, 13 A.D.3d 571, 786 N.Y.S.2d 326;  cf. Anderson v. RC Dolner, Inc., 43 A.D.3d 837, 842 N.Y.S.2d 50).

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