Opinion
2013-11-13
CRESCENT ELECTRIC SUPPLY COMPANY, INC., of New York, respondent, v. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, et al., defendants-appellants, et al., defendant; Michael J. Barnaby, nonparty-appellant.
Law Offices of Michael J. Barnaby, LLC, New York, N.Y. (Michael J. Barnaby, pro se, of counsel), for defendants-appellants and nonparty-appellant. Korsinsky & Klein, LLP, New York, N.Y. (Michael Korsinsky of counsel), for respondent.
Law Offices of Michael J. Barnaby, LLC, New York, N.Y. (Michael J. Barnaby, pro se, of counsel), for defendants-appellants and nonparty-appellant. Korsinsky & Klein, LLP, New York, N.Y. (Michael Korsinsky of counsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendants Travelers Casualty and Surety Company of America and Anderson Electric, Inc., and their attorney, the nonparty Michael J. Barnaby, appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated April 12, 2010, as granted that branch of the plaintiff's motion which was for an award of costs, including an attorney's fee, payable by Michael J. Barnaby pursuant to 22 NYCRR 130–1.1, and granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the answer of the defendants Travelers Casualty and Surety Company of America and Anderson Electric, Inc., to the extent of conditionally striking that answer unless those defendants produced certain documents on or before May 10, 2010, and completed all depositions on or before June 28, 2010.
ORDERED that the order is affirmed insofar as appealed from, with costs.
Under the circumstances of this case, the Supreme Court providently exercised its discretion in awarding the plaintiff costs, including an attorney's fee, payable by the nonparty Michael J. Barnaby, the attorney for the defendants Travelers Casualty and Surety Company of America and Anderson Electric, Inc. (hereinafter the Travelers defendants), for Barnaby's frivolous conduct (see 22 NYCRR 130–1.1; Seaman v. Wyckoff Hgts. Med. Ctr., Inc., 25 A.D.3d 598, 806 N.Y.S.2d 888;Barco Auto Leasing Corp. v. Thornton, 298 A.D.2d 341, 751 N.Y.S.2d 204).
The Supreme Court also providently exercised its discretion in conditionally striking the answer of the Travelers defendants for their willful and contumacious conduct in repeatedly failing to comply with court-ordered discovery, coupled with inadequate explanations for these defaults ( seeCPLR 3126; Maignan v. Nahar, 37 A.D.3d 557, 830 N.Y.S.2d 249).