Northern Leasing Sys., Inc. v Estate of Turner
2011 NY Slip Op 01718 [82 AD3d 490]
March 8, 2011
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 11, 2011

Northern Leasing Systems, Inc., Respondent,
Estate of Edward M. Turner, Deceased, et al., Appellants.

[*1] Chittur & Associates, P.C., New York (Krishnan Chittur of counsel), for appellants.

Moses & Singer LLP, New York (Declan Butvick of counsel), for respondent.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered April 15, 2010, which precluded defendants from introducing into evidence any material not produced to plaintiff by April 2, 2009 as a sanction for their dilatory discovery conduct, unanimously affirmed, without costs.

The motion court providently exercised its discretion in sanctioning defendants. Defendants' willful and contumacious refusal to cooperate with the discovery process can be inferred from two years of noncompliance with plaintiff's requests and defendants' failure to comply with three court orders directing defendants to produce documents and warning them of sanctions (see Glasburgh v Port Auth. of N.Y. & N.J., 193 AD2d 441 [1993]; Fish & Richardson, P.C. v Schindler, 75 AD3d 219 [2010]).

Defendants' argument that plaintiff's failure to include an affirmation of good faith pursuant to 22 NYCRR 202.7 should be fatal to its cross motion for sanctions is unavailing. The record indicates that plaintiff attempted, both under the auspices of the court and out of court, to reach an accommodation with defendants. "Under the unique circumstances of this case," any further attempt to resolve the dispute nonjudicially would have been futile (see Carrasquillo v Netsloh Realty Corp., 279 AD2d 334, 334 [2001]).

We have considered the remaining arguments and find them unavailing. Concur—Andrias, J.P., Catterson, Moskowitz, Abdus-Salaam and RomÁn, JJ. [Prior Case History: 2010 NY Slip Op 30906(U).]