section 3126(3) cross motion in New York

2025Dist. , 161 AD3d 1210 , 1211, quoting Pegasus Aviation I, Inc. v Varig Logistica S.A. , 26 NY3d 543, 547 ). "[I]n the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices" ( id. [internal quotation marks omitted]).

2025Dist. , 161 AD3d 1210 , 1211, quoting Pegasus Aviation I, Inc. v Varig Logistica S.A. , 26 NY3d 543, 547 ). "[I]n the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices" ( id. [internal quotation marks omitted]).

2014CPLR 3101 (d) (1) (i) “does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party” (Cutsogeorge v Hertz Corp., 264 AD2d 752, 753-754 [1999], quoting Aversa v Taubes, 194 AD2d 580, 582 [1993], quoting Lillis v D’Souza, 174 AD2d 976, 976 [1991] [internal quotation marks omitted]; see Barchella Contr.

2014CPLR 3101 (d) (1) (i) “does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party” (Cutsogeorge v Hertz Corp., 264 AD2d 752, 753-754 [1999], quoting Aversa v Taubes, 194 AD2d 580, 582 [1993], quoting Lillis v D’Souza, 174 AD2d 976, 976 [1991] [internal quotation marks omitted]; see Barchella Contr.

2014The appeal from so much of the order entered June 3, 2011, as granted those branches of the motion of the defendant S&K Restaurant Corp. and the cross motion of the defendants Parking Systems Plus, Inc., and Island Valet Service, Inc., which were for summary judgment dismissing the complaint insofar as asserted against each of them and denied the plaintiffs cross motion pursuant to CPLR 3126 to strike the answers of those defendants must be dismissed because the right of direct appeal from those portions of the order terminated with the entry of the judgments dated September 19, 2011, and Dece

2014The appeal from so much of the order entered June 3, 2011, as granted those branches of the motion of the defendant S&K Restaurant Corp. and the cross motion of the defendants Parking Systems Plus, Inc., and Island Valet Service, Inc., which were for summary judgment dismissing the complaint insofar as asserted against each of them and denied the plaintiffs cross motion pursuant to CPLR 3126 to strike the answers of those defendants must be dismissed because the right of direct appeal from those portions of the order terminated with the entry of the judgments dated September 19, 2011, and Dece

2014CPLR 3101 (d) (1) (i) “does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party” (Cutsogeorge v Hertz Corp., 264 AD2d 752, 753-754 [1999], quoting Aversa v Taubes, 194 AD2d 580, 582 [1993], quoting Lillis v D’Souza, 174 AD2d 976, 976 [1991] [internal quotation marks omitted]; see Barchella Contr.

2014CPLR 3101 (d) (1) (i) “does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party” (Cutsogeorge v Hertz Corp., 264 AD2d 752, 753-754 [1999], quoting Aversa v Taubes, 194 AD2d 580, 582 [1993], quoting Lillis v D’Souza, 174 AD2d 976, 976 [1991] [internal quotation marks omitted]; see Barchella Contr.

2014Contrary to the plaintiff’s contention, the Supreme Court properly denied his cross motion pursuant to CPLR 3126 to impose a sanction upon the defendants for the spoliation of evidence, as there is no evidence that the defendants were responsible for the loss or destruction of the subject ladder (see Gotto v Eusebe-Carter, 69 AD3d 566, 567 [2010]).

2014Contrary to the plaintiff’s contention, the Supreme Court properly denied his cross motion pursuant to CPLR 3126 to impose a sanction upon the defendants for the spoliation of evidence, as there is no evidence that the defendants were responsible for the loss or destruction of the subject ladder (see Gotto v Eusebe-Carter, 69 AD3d 566, 567 [2010]).

2014Thus, “ ‘the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law’ ” (Simmons v Canady, 95 AD3d 1201, 1202 [2012], quoting Pollack v Margolin, 84 AD3d 1341, 1342 [2011]).

2014Thus, “ ‘the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law’ ” (Simmons v Canady, 95 AD3d 1201, 1202 [2012], quoting Pollack v Margolin, 84 AD3d 1341, 1342 [2011]).

2014Thus, “ ‘the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law’ ” (Simmons v Canady, 95 AD3d 1201, 1202 [2012], quoting Pollack v Margolin, 84 AD3d 1341, 1342 [2011]).

2014Thus, “ ‘the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law’ ” (Simmons v Canady, 95 AD3d 1201, 1202 [2012], quoting Pollack v Margolin, 84 AD3d 1341, 1342 [2011]).

2014CPLR 3101 (d) (1) (i) “does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party” (Cutsogeorge v Hertz Corp., 264 AD2d 752, 753-754 [1999], quoting Aversa v Taubes, 194 AD2d 580, 582 [1993], quoting Lillis v D’Souza, 174 AD2d 976, 976 [1991] [internal quotation marks omitted]; see Barchella Contr.

2014CPLR 3101 (d) (1) (i) “does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party” (Cutsogeorge v Hertz Corp., 264 AD2d 752, 753-754 [1999], quoting Aversa v Taubes, 194 AD2d 580, 582 [1993], quoting Lillis v D’Souza, 174 AD2d 976, 976 [1991] [internal quotation marks omitted]; see Barchella Contr.

2014The Supreme Court granted those branches of that motion and cross motion and denied the plaintiffs cross motion pursuant to CPLR 3126 to strike the answers of those defendants on the ground it had been rendered academic. “ ‘There can be more than one proximate cause of an accident’ ” (Graeber-Nagel v Naranjan, 101 AD3d 1078 , 1078 [2012], quoting Cox v Nunez, 23 AD3d 427, 427 [2005]).

2014The Supreme Court granted those branches of that motion and cross motion and denied the plaintiffs cross motion pursuant to CPLR 3126 to strike the answers of those defendants on the ground it had been rendered academic. “ ‘There can be more than one proximate cause of an accident’ ” (Graeber-Nagel v Naranjan, 101 AD3d 1078 , 1078 [2012], quoting Cox v Nunez, 23 AD3d 427, 427 [2005]).

2013Since 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 two days before the return date (see CPLR 2103 [b] [2]; 2214 [b]; Bush v Hayward, 156 AD2d 899, 900-901 [1989]; Capoccia v Brognano, 132 AD2d 833, 833-834 [1987]).

2013Since 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 two days before the return date (see CPLR 2103 [b] [2]; 2214 [b]; Bush v Hayward, 156 AD2d 899, 900-901 [1989]; Capoccia v Brognano, 132 AD2d 833, 833-834 [1987]).

2013Ordered that the order dated December 15, 2011, is reversed, on the law and in the exercise of discretion, with costs, the plaintiffs’ motion, in effect, pursuant to CPLR 2221 (a) (1) and CPLR 5015 (a) (1), to vacate the order dated July 21, 2011, entered upon their default in appearing on the return date of their motion, and to restore their prior motion to the calendar is denied, and the defendant’s cross motion pursuant to CPLR 3126 (3) to dismiss the complaint is granted. “ ‘A party seeking to vacate an order entered upon his or her default is required to demonstrate a reasonable excuse fo

2013Ordered that the order dated December 15, 2011, is reversed, on the law and in the exercise of discretion, with costs, the plaintiffs’ motion, in effect, pursuant to CPLR 2221 (a) (1) and CPLR 5015 (a) (1), to vacate the order dated July 21, 2011, entered upon their default in appearing on the return date of their motion, and to restore their prior motion to the calendar is denied, and the defendant’s cross motion pursuant to CPLR 3126 (3) to dismiss the complaint is granted. “ ‘A party seeking to vacate an order entered upon his or her default is required to demonstrate a reasonable excuse fo

2013Corp., 95 AD3d 1075, 1076 [2012]; Yearwood v Post Park, LLC, 91 AD3d 766, 767 [2012]).

2013Corp., 95 AD3d 1075, 1076 [2012]; Yearwood v Post Park, LLC, 91 AD3d 766, 767 [2012]).

2013Corp., 95 AD3d 1075, 1076 [2012]; Yearwood v Post Park, LLC, 91 AD3d 766, 767 [2012]).

2013Corp., 95 AD3d 1075, 1076 [2012]; Yearwood v Post Park, LLC, 91 AD3d 766, 767 [2012]).

2013Since 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 two days before the return date (see CPLR 2103 [b] [2]; 2214 [b]; Bush v Hayward, 156 AD2d 899, 900-901 [1989]; Capoccia v Brognano, 132 AD2d 833, 833-834 [1987]).

2013Since 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 two days before the return date (see CPLR 2103 [b] [2]; 2214 [b]; Bush v Hayward, 156 AD2d 899, 900-901 [1989]; Capoccia v Brognano, 132 AD2d 833, 833-834 [1987]).

2026The willful and contumacious conduct of the plaintiff and the third-party defendants can be inferred from their repeated failures to comply with the court-ordered discovery, to respond to the defendant's demands for discovery without an adequate excuse, and to appear for a scheduled deposition ( see Muhammad v Ramadan , 228 AD3d at 676; Broccoli v Kohl's Dept.

2025Here, the Supreme Court providently exercised its discretion in rejecting the proffered excuse of the plaintiff Feifei Gu for failing to appear on the return date of the plaintiffs' motion, inter alia, to compel certain discovery and the defendants' cross-motion pursuant to CPLR 3126(3) to strike the complaint ( see Wade v Cojab , 219 AD3d at 669; Bank of Am., N.A. v Russell , 197 AD3d at 448; Thomas v Avalon Gardens Rehabilitation & Health Care Ctr. , 107 AD3d 694, 695).

2025Here, the Supreme Court providently exercised its discretion in rejecting the proffered excuse of the plaintiff Feifei Gu for failing to appear on the return date of the plaintiffs' motion, inter alia, to compel certain discovery and the defendants' cross-motion pursuant to CPLR 3126(3) to strike the complaint ( see Wade v Cojab , 219 AD3d at 669 ; Bank of Am., N.A. v Russell , 197 AD3d at 448 ; Thomas v Avalon Gardens Rehabilitation & Health Care Ctr. , 107 AD3d 694 , 695).

2025In any event, even assuming, arguendo, that there was a reasonable excuse for Feifei Gu's default in appearing on the return date, Feifei Gu failed to establish a potentially meritorious opposition to the defendants' cross-motion pursuant to CPLR 3126(3) to strike the complaint ( see Wade v Cojab , 219 AD3d at 669-670; Thomas v Avalon Gardens Rehabilitation & Health Care Ctr. , 107 AD3d at 695).

2025Here, the Supreme Court providently exercised its discretion in rejecting the proffered excuse of the plaintiff Feifei Gu for failing to appear on the return date of the plaintiffs' motion, inter alia, to compel certain discovery and the defendants' cross-motion pursuant to CPLR 3126(3) to strike the complaint ( see Wade v Cojab , 219 AD3d at 669; Bank of Am., N.A. v Russell , 197 AD3d at 448; Thomas v Avalon Gardens Rehabilitation & Health Care Ctr. , 107 AD3d 694, 695).

2025In any event, even assuming, arguendo, that there was a reasonable excuse for Feifei Gu's default in appearing on the return date, Feifei Gu failed to establish a potentially meritorious opposition to the defendants' cross-motion pursuant to CPLR 3126(3) to strike the complaint ( see Wade v Cojab , 219 AD3d at 669-670; Thomas v Avalon Gardens Rehabilitation & Health Care Ctr. , 107 AD3d at 695).

2025Here, the Supreme Court providently exercised its discretion in rejecting the proffered excuse of the plaintiff Feifei Gu for failing to appear on the return date of the plaintiffs' motion, inter alia, to compel certain discovery and the defendants' cross-motion pursuant to CPLR 3126(3) to strike the complaint ( see Wade v Cojab , 219 AD3d at 669; Bank of Am., N.A. v Russell , 197 AD3d at 448; Thomas v Avalon Gardens Rehabilitation & Health Care Ctr. , 107 AD3d 694, 695).

2023The plaintiff did not establish that the defendant was placed on notice that the evidence might be needed for future litigation at the time the surveillance footage was overwritten ( see Sanders v 210 N. 12th St., LLC , 171 AD3d at 968; Tanner v Bethpage Union Free Sch.