STATE FARM FIRE AND CASUALTY COMPANY v. Anderson–Barrows Metals Corporation, et al., appellants.

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STATE FARM FIRE AND CASUALTY COMPANY, as subrogee of Edward M. Thal, respondent, v. R. BEST PLUMBING, INC., defendant, Anderson–Barrows Metals Corporation, et al., appellants.

Decided: January 30, 2013

MARK C. DILLON, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ. Kantrowitz, Goldhamer & Graifman, P.C., Chestnut Ridge, N.Y. (Michael L. Braunstein of counsel), for appellants. Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola, N.Y. (John J. Hanley of counsel), for respondent.

In an action to recover damages for injury to property, the defendants Anderson–Barrows Metals Corporation and Watts Industries, Inc., appeal from an order of the Supreme Court, Suffolk County (Martin, J.), dated December 20, 2011, which, upon a decision of the same court dated March 15, 2011, granted the plaintiff's motion pursuant to CPLR 3126 to preclude them from offering evidence at trial.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion pursuant to CPLR 3126 to preclude the appellants from offering evidence at trial is denied.

Even though the plaintiff's motion pursuant to CPLR 3126 requested that the answering affidavits be served 7 days prior to the date upon which the motion was noticed to be heard, it is undisputed that the motion was served by regular mail only 19 days prior to that time. Since the plaintiff did not serve its motion at least 21 days before the return date, it was only entitled to service of the answering papers 2 days before the return date (see CPLR 2103[b][2]; 2214[b]; Bush v. Hayward, 156 A.D.2d 899, 900–901; Capoccia v. Brognano, 132 A.D.2d 833, 833–834). Contrary to the determination of the Supreme Court, the appellants, who served their opposition papers 4 days prior to the return date, did not default in opposing the plaintiff's motion. Accordingly, the Supreme Court erred in not considering the appellants' opposition papers on the ground that they were late, and erred in treating the plaintiff's motion as unopposed.

Furthermore, there was no clear showing that the appellants engaged in willful and contumacious conduct in response to the plaintiff's notice to produce (see Zakhidov v. Boulevard Tenants Corp., 96 AD3d 737, 739; Moray v. City of Yonkers, 76 AD3d 618, 619; Moog v. City of New York, 30 AD3d 490, 490–491; Assael v. Metropolitan Tr. Auth., 4 AD3d 443). Accordingly, the plaintiff's motion pursuant to CPLR 3126 to preclude the appellants from offering evidence at trial should have been denied.

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