CDR CRÉANCES S.A.S. v. COHEN

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Docket Number

No. 8309.

Attorney(S)

Pavia Harcourt LLP, New York (Steven Skulnik of counsel), and Bryan Cave LLP, New York (Suzanne M. Berger and Robert A. Wolf of counsel), for Euro-American Lodging Corporation, appellant. Montclare Wachtler, New York (Paul D. Montclare of counsel), for Macson appellants. Herrick Feinstein LLP, New York (Scott T. Tross of counsel), for Atlantic Bank of New York, appellant. Kellner Herlihy Getty Friedman, LLP, New York (Douglas A. Kellner, Arthur W. Greig and Bruce J. Bergman of counsel), for CDR CrÉ ances S.A., respondent.

Judges

Rolando T. Acosta
Leland G. DeGrasse
Rosalyn H. Richter

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CDR CRÉANCES S.A.S., as Successor to SOCIETE DE BANQUE OCCIDENTALE, Respondent, v. MAURICE COHEN et al., Appellants, et al., Defendants. CDR CRÉANCES S.A.S., as Successor to SOCIETE DE BANQUE OCCIDENTALE, Respondent-Appellant,

While a court is vested with broad discretion to control its calendar and supervise disclosure in order to facilitate the resolution of cases, and the imposition of sanctions for discovery misfeasance is generally a matter best left to the trial court's discretion, the IAS court nonetheless improvidently exercised its discretion in granting default judgments against defendants-appellants. In view of the brief period between THE first discovery order and the granting of the defaults ( see Castillo v Garzon-Ruiz, 290 AD2d 288), the magnitude of the judgments ( New York Annual Conference of United Methodist Church v Preusch, 51 AD2d 711, 712), and the lack of any specific prejudice to plaintiff ( Sosa v Kasim, 48 AD3d 320), reasonable latitude should have been afforded before imposing the ultimate sanction ( see Bassett v Bando Sangsa Co., 103 AD2d 728). Moreover, given the sworn statements on behalf of these defendants that their prior counsel had failed to advise them of the need to appear for depositions, as well as their foreign residence and the facial merit of their defenses, the court erred in finding that their failure to comply was willful, contumacious or due to bad faith ( see Weissman v 20 E. 9th St. Corp., 48 AD3d 242).

Plaintiff's contention on cross appeal that the inquest court erred in failing to award it punitive damages against Maraboeuf, Aich and Petetin is rendered academic by our vacatur of that judgment, and in any event is unavailing, since plaintiff failed to present clear, unequivocal and convincing evidence of willful conduct that was morally culpable, or was actuated by evil and reprehensible motives ( Munoz v Puretz, 301 AD2d 382, 384-385). The claimed entitlement to summary judgment is not properly before us, based on plaintiff's limited notice of appeal, and in any event is without merit ( see generally Sadkin v Raskin Rappoport, 271 AD2d 272, 273).

Our disposition is without prejudice to the imposition of such other sanctions as the court deems appropriate.

[ See 2008 NY Slip Op 32352(U).]

CDR CRÉANCES S.A.S., as Successor to SOCIETE DE BANQUE OCCIDENTALE, Respondent, v. MAURICE COHEN et al., Appellants, et al., Defendants. CDR CRÉANCES S.A.S., as Successor to SOCIETE DE BANQUE OCCIDENTALE, Respondent-Appellant,

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