Blay v. Frost , 2 N.Y.S.3d 373 ( 2015 )

Blay v Frost (2015 NY Slip Op 01771)

Blay v Frost

2015 NY Slip Op 01771

Decided on March 4, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 4, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
JOHN M. LEVENTHAL
THOMAS A. DICKERSON
ROBERT J. MILLER, JJ.

2014-04747
(Index No. 10042/12)

[*1]Stewart Blay, appellant,

v

Nancy Gordon Frost, respondent, et al., defendant.

Noah Arenstein, Brooklyn, N.Y., for appellant.

Joel B. Rudin, New York, N.Y., for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Pfau, J.), dated April 18, 2014, as denied that branch of his motion which was pursuant to CPLR 2004, in effect, to extend the time in which to conduct his deposition.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In exercising its discretion to grant an extension of time pursuant to CPLR 2004, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the opponent of the motion (see Tewari v Tsoutsouras , 75 NY2d 1, 11-12). Here, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was, in effect, to extend the time in which to conduct his deposition, since the plaintiff's own failure to comply with discovery demands hampered the defendant Nancy Gordon Frost's ability to conduct his deposition. Furthermore, the plaintiff failed to show good cause for the past delay and that Frost would not be prejudiced as a result of that delay (see Dhaliwal v Long Boat Taxi , 305 AD2d 449, 449; Carota v Massapequa Union Free School Dist ., 272 AD2d 428, 428; Versatile Furniture Prods. v 32-8 Maujer Realty , 97 AD2d 463, 463).

The parties' remaining contentions are without merit or need not be reached in light of our determination.

BALKIN, J.P., LEVENTHAL, DICKERSON and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court