Dabrowski v. ABAX Inc. , 22 N.Y.S.3d 828 ( 2016 )

Dabrowski v ABAX Inc. (2016 NY Slip Op 00112)

Dabrowski v ABAX Inc.

2016 NY Slip Op 00112

Decided on January 12, 2016

Appellate Division, First 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 January 12, 2016
Renwick, J.P., Andrias, Saxe, Moskowitz, JJ.

16616 106778/07

[*1] Jerzy Dabrowski, et al., Plaintiffs-Respondents,

v

ABAX Incorporated, etc., et al., Defendants-Appellants, John Doe Bonding Companies 1-20, Defendants.

Milman Labuda Law Group PLLC, Lake Success (Joseph M. Labuda of counsel), for ABAX Incorporated, appellant.

Goetz Fitzpatrick LLP, New York (Michael Fleishman of counsel), for John Bleckman and Edward Monaco, appellants.

Virginia & Ambinder, LLP, New York (LaDonna Lusher of counsel), for respondents.

Order, Supreme Court, New York County (George J. Silver, J.), entered September 4, 2014, which denied defendants-appellants' motion for discovery sanctions against four class members, unanimously affirmed, without costs.

The motion court providently exercised its discretion in denying defendants' motion to dismiss the four class members from the class, as they did not show that the four class members' failure to appear for a court-ordered deposition was willfull, contumacious or in bad faith (see CPLR 3126; Henderson-Jones v City of New York, 87 AD3d 498, 504 [1st Dept 2011]). There is no evidence of repeated failures to appear for scheduled depositions or to comply with court-ordered discovery (see Tsai v Hernandez, 284 AD2d 116, 117 [1st Dept 2001]). Plaintiffs' counsel stated that her mailings to the four class members were returned to her and that three of the four class members never contacted her (see Blake v Mamadou, 281 AD2d 301 [1st Dept 2001]). Counsel further stated that one class member notified her that he could not appear for his scheduled deposition because of personal reasons. Under the circumstances, the motion court providently exercised its discretion in declining to impose a monetary sanction.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 12, 2016

CLERK