Ashfaq v. Ice Cream Depot Corp.

209 A.D.3d 704

176 N.Y.S.3d 108

Muhammed ASHFAQ, et al., appellants,

v.ICE CREAM DEPOT CORP., et al., respondents, et al., defendants.

2017–06358, 2017–06359

Index No. 16271/10

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

Argued—June 3, 2022

October 12, 2022

Hasapidis Law Offices, South Salem, NY (Annette G. Hasapidis and Bhurtel Law Firm PLLC [Dylan J. Brennan ], of counsel), for appellants.

Furey, Furey, Leverage, Manzione, Williams & Darlington, P.C., Hempstead, NY (Susan Weihs Darlington of counsel), for respondents Ice Cream Depot Corp. and Elizabeth M. Keller, as the administrator of the estate of Charles Battipede.

Mark E. Alter (Rubin Law, PLLC, New York, NY [Denise A. Rubin ], of counsel), for respondents Anthony Ivanditto, David Ivanditto, and Ivanditto Land Corporation.

VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (Joseph Farneti, J.), dated June 24, 2016, and (2) an order of the same court dated April 13, 2017. The order dated June 24, 2016, inter alia, directed the plaintiffs to comply with certain outstanding discovery requests. The order dated April 13, 2017, granted that branch of the motion of the defendants Ice Cream Depot Corp. and Charles Battipede, separately joined by the defendants Anthony Ivanditto, David Ivanditto, and Ivanditto Land Corporation, and the defendant Paul A. Lock, which was pursuant to CPLR 3126 to strike the amended complaint, and denied, as academic, the plaintiffs’ motion pursuant to CPLR 3126 to strike the defendants’ answers or, in the alternative, to preclude the answering defendants from offering evidence at trial.

ORDERED that the appeal from the order dated June 24, 2016, is dismissed as abandoned; and it is further,

ORDERED that the order dated April 13, 2017, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

The plaintiff Muhammed Ashfaq allegedly was robbed and assaulted while on property owned and maintained by the defendants Ice Cream Depot Corp. and Charles Battipede (hereinafter together the ICD defendants), the defendants Anthony Ivanditto, David Ivanditto, and Ivanditto Land Corporation (hereinafter collectively the Ivanditto defendants), and the defendant Paul A. Lock (hereinafter collectively with the ICD defendants and the Ivanditto defendants, the defendants). Ashfaq, and his wife suing derivatively, commenced this action, inter alia, to recover damages for personal injuries and loss of consortium. Following several court conferences related to outstanding discovery, the Supreme Court, in an order dated June 24, 2016, among other things, directed the plaintiffs to provide the defendants with outstanding discovery memorialized and described in correspondence dated April 4, 2016, from counsel for the ICD defendants, including medical authorizations and tax records related to the plaintiffs’ allegations.

The ICD defendants thereafter moved, inter alia, pursuant to CPLR 3126 to strike the amended complaint based on the plaintiffs’ failure to comply with the order dated June 24, 2016. The Ivanditto defendants and Lock separately joined the motion. While that motion was pending, the plaintiffs moved pursuant to CPLR 3126 to strike the defendants’ answers or, in the alternative, to preclude the defendants from offering evidence at trial based on their failure to appear for depositions and to comply with the plaintiffs’ discovery demands. In an order dated April 13, 2017, the Supreme Court granted that branch of the ICD defendants’ motion, joined by the Ivanditto defendants and Lock, which was to strike the amended complaint, and denied the plaintiffs’ motion as academic. The plaintiffs appeal from the orders dated June 24, 2016, and April 13, 2017.

The plaintiffs’ appeal from the order dated June 24, 2016, must be dismissed as abandoned, as the plaintiffs’ brief does not request modification or reversal of any portion of that order (see Burke v. Newburgh Enlarged City Sch. Dist., 195 A.D.3d 674, 677, 145 N.Y.S.3d 355 ; Johnson v. Aguwa, 176 A.D.3d 1039, 1041, 108 N.Y.S.3d 895 ; Sanchez v. Rivera, 171 A.D.3d 965, 966, 97 N.Y.S.3d 684 ).

"Although actions should be resolved on the merits wherever possible, a court may strike the ‘pleadings or parts thereof’ as a sanction against a party who ‘refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed’ " ( Bouri v. Jackson, 177 A.D.3d 947, 949, 113 N.Y.S.3d 232, quoting CPLR 3126 [citations omitted]; see Von Maack v. Wyckoff Hgts. Med. Ctr., 195 A.D.3d 769, 770, 150 N.Y.S.3d 113 ). "Where a party in these...