Greaves v. Burlingame, 12 A.D.3d 730 (N.Y. App. Div. 2004). · Go Syfert
Greaves v. Burlingame, 12 A.D.3d 730 (N.Y. App. Div. 2004). Cases Citing This Book View Copy Cite
10 citation events (10 in the last 25 years) across 2 distinct courts.
Strongest positive: Calabrese Bakeries, Inc. v. Rockland Bakery, Inc. (nyappdiv, 2016-05-12)
Top citers, strongest first. 6 distinct citers. How cited ↗
discussed Cited as authority (rule) Calabrese Bakeries, Inc. v. Rockland Bakery, Inc.
N.Y. App. Div. · 2016 · confidence medium
Accordingly, as these circumstances give rise to the inference that plaintiffs’ late disclosure was willful and the Rockland defendants would be prejudiced by plaintiffs’ use of the belatedly-disclosed documents, Supreme Court did not abuse its discretion in precluding plaintiffs from introducing, referencing or relying on those documents at trial (see Greaves v Burlingame, 12 AD3d 730, 731-732 [2004], lv dismissed and denied 5 NY3d 741 [2005], lv dismissed 5 NY3d 742 [2005]; Osterhoudt v Wal-Mart Stores, 273 AD2d 673, 674-675 [2000]). *1195 Plaintiffs further contend that Supreme Court er…
discussed Cited as authority (rule) Kumar v. Kumar
N.Y. App. Div. · 2009 · confidence medium
Hosp. of Sullivan County, 51 AD3d 1359, 1360 [2008] [citations omitted]; see Hesse Constr., LLC v Fisher, 61 AD3d 1143, 1144 [2009]; Greaves v Burlingame, 12 AD3d 730, 731 [2004], lv dismissed and denied 5 NY3d 741 [2005], lv dismissed 5 NY3d 742 [2005]).
discussed Cited as authority (rule) Hesse Construction, LLC v. Fisher
N.Y. App. Div. · 2009 · confidence medium
Notably, defendant stipulated to the consequences of her conduct and proffered no adequate excuse for her noncompliance (see Greaves v Burlingame, 12 AD3d 730, 731 [2004], lv dismissed and denied 5 NY3d 741 [2005], lv dismissed 5 NY3d 742 [2005]; Cavanaugh v Russell Sage Coll., 4 AD3d 660, 660-661 [2004]).
discussed Cited as authority (rule) Moak v. Raynor
N.Y. App. Div. · 2006 · confidence medium
CPLR 3126 authorizes a court to fashion an appropriate remedy in response to a party’s refusal to obey an order of disclosure or willful failure to disclose information, leaving the type and degree of sanction to the court’s discretion (see Greaves v Burlingame, 12 AD3d 730, 731 [2004], lv dismissed, denied 5 NY3d 741 , lv dismissed 5 NY3d 742 [2005]; Cavanaugh v Russell Sage Coll., 4 AD3d 660, 660 [2004]).
discussed Cited as authority (rule) Du Valle v. Swan Lake Resort Hotel, LLC (2×) also: Cited "see"
N.Y. App. Div. · 2006 · confidence medium
The proffered excuses were inadequate (see Greaves v Burlingame, supra at 731; Cavanaugh v Russell Sage Coll., supra at 661), as was the contention that her failure to respond was not “willful, deliberate and contumacious”; an overall pattern of noncompliance gives rise to an inference of such conduct (see Cavanaugh v Russell Sage Coll., supra at 661; Martin v Brooks, 270 AD2d 538, 539 [2000]).
discussed Cited "see" In re the Estate of Scaccia
N.Y. App. Div. · 2009 · signal: see · confidence high
Hosp. of Sullivan County, 51 AD3d 1359, 1360 [2008]). “[T]he type and degree of the sanction imposed by the trial court will not be disturbed absent a clear abuse of the court’s discretion” (Matter of Pyramid Crossgates Co. v Board of Assessors of Town of Guilderland, 287 AD2d 866, 870 [2001], lv dismissed 98 NY2d 634 [2002]; see Greaves v Burlingame, 12 AD3d 730, 731 [2004], lv dismissed and denied 5 NY3d 741 [2005], lv dismissed 5 NY3d 742 [2005]).
Retrieving the full opinion text from the archive…
Robert Greaves
v.
Jaclyn Burlingame
Appellate Division of the Supreme Court of the State of New York.
Nov 4, 2004.
12 A.D.3d 730
2004 N.Y. App. Div. LEXIS 12999
Cardona.
Cited by 8 opinions  |  Published
Cardona, P.J.

Appeals (1) from an order of the Supreme Court (Monserrate, J.), entered September 4, 2002 in Broome County, which, inter alia, granted plaintiffs motion to preclude certain evidence, and (2) from an order of said court, entered October 31, 2002 in Broome County, which, inter alia, granted plaintiffs motion for summary judgment.

The parties herein were involved in a relationship from September 1994 until October 2000. During part of that time, the parties lived together and apparently were engaged at one point but did not marry. Plaintiff made several gifts to defendant including, among other things, a half interest in plaintiffs residence. He also gave her a signed check in the amount of $10,000 to be used in an emergency, which defendant cashed soon after receiving it. After their final separation, plaintiff commenced this action alleging, inter alia, fraud in an effort to, inter alia, regain full title to the residence and recover the $10,000.

On October 17, 2001, plaintiff served interrogatories which included requests for various documents. Defendant did not respond and, in February 2002, plaintiff moved for, among other things, an order of preclusion. Supreme Court denied the motion and ordered both parties to comply with a discovery schedule. Defendant, represented by counsel, answered the interrogatories. Plaintiff rejected them, however, maintaining that he[*731] received the answers after their due date and they were not complete, partially because of missing documents. On June 24, 2002, defendant did not appear on time for an examination before trial and, by the time she arrived, her counsel and the stenographer had left.

Thereafter, on July 1, 2002, plaintiff renewed, by order to show cause, his motion for summary judgment, preclusion and other relief. On July 26, 2002, Supreme Court conditionally denied that motion and set a new deadline, August 5, 2002, for compliance with discovery. Defendant released her attorney on August 5, 2002 and, proceeding pro se, wrote to Supreme Court on August 7, 2002, indicating, inter alia, that she wanted to comply with the discovery schedule and was “trying to get together all of the documents.” On August 23, 2002, after receiving no further response from defendant, plaintiff resubmitted his request for a preclusion order. Defendant did not respond and Supreme Court granted that relief in an August 28, 2002 order. Plaintiff subsequently moved for summary judgment on his complaint and defendant’s counterclaims. Although defendant opposed the motion and cross-moved for various forms of relief, Supreme Court, in an October 30, 2002 order, granted summary judgment in favor of plaintiff. Defendant appeals both orders.

With respect to the order of preclusion, there can be no dispute that a trial court has the authority “to fashion an appropriate remedy when a party refuses to obey an order of disclosure or willfully fails to disclose information” (Cavanaugh v Russell Sage Coll., 4 AD3d 660, 660 [2004]). “[T]he type and degree of the sanction imposed by the trial court will not be disturbed absent a clear abuse of the court’s discretion” (Matter of Pyramid Crossgates Co. v Board of Assessors of Town of Guilderland, 287 AD2d 866, 870 [2001], lv dismissed 98 NY2d 634 [2002]; see Appler v Riverview Obstetrics & Gynecology, 9 AD3d 577, 578 [2004]; Rankin v Miller, 252 AD2d 863, 864 [1998]).

Here, we find no abuse of discretion with respect to the order of preclusion. The record demonstrates that defendant had ample notice of plaintiffs discovery requests but failed to comply with all deadlines, including a court-ordered disclosure schedule and a conditional court order (see Cavanaugh v Russell Sage Coll., supra at 661). Defendant was warned as to the consequences of her conduct and offered no adequate excuse (see id.). Accordingly, we find no basis to disturb Supreme Court’s exercise of discretion given the many opportunities afforded defendant to comply (see Saratoga Harness Racing v Roemer, 290[*732] AD2d 928, 929-930 [2002]). Furthermore, in light of the absence of competent proof sufficient to raise a question of fact to oppose the evidence offered by plaintiff, we also find no error in the court’s subsequent grant of summary judgment in plaintiffs favor (see CPLR 3212 [b]).

The remaining arguments raised by defendant have been examined and found to be either unpersuasive or unpreserved for appellate review.

Peters, Mugglin, Rose and Kane, JJ., concur. Ordered that the orders are affirmed, without costs.