| Discover Bank v Posner |
| 2012 NY Slip Op 51382(U) [36 Misc 3d 137(A)] |
| Decided on July 26, 2012 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Defendant appeals from an order of the Civil Court of the City of New York, New York
County (Arthur F. Engoron, J.), dated September 27, 2011, which denied her motion for leave to
amend the answer and to dismiss the complaint pursuant to CPLR 3126.
Per Curiam.
Order (Arthur F. Engoron, J.), dated September 27, 2011, affirmed, with $10 costs.
Leave to file an amended answer was properly denied, as defendant failed to timely submit an affidavit of merit. "Defendant's attempt to remedy the deficiency by submitting [her] affidavit for the first time in reply was improper" (Schulte Roth & Zabel, LLP v Kassover, 28 AD3d 404, 405 [2006]). Nor was defendant entitled to relief pursuant to CPLR 3126, in the absence of any showing that plaintiff failed to comply with written discovery requests or court orders mandating disclosure (see Carnegie Assocs. Ltd. v Miller, 94 AD3d 404 [2012]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 26, 2012