Preview
FILED: NASSAU COUNTY CLERK 07/06/2023 11:41 AM INDEX NO. 600378/2023
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 07/06/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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PEARL DELTA FUNDING, LLC,
Plaintiff, Index No.: 600378/2023
-against- Returnable: 07/27/2023
PEAK TITLE AGENCY CO. AKA PEAK TITLE CO Hon. Conrad D. Singer
and TOBBY JABLONSKI and JUAN RUIZ JR.,
Defendants.
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PLAINTIFF PEARL DELTA FUDNING, LLC’S MEMORANDUM OF LAW
IN SUPPORT OF ITS MOTION TO STRIKE DEFENDANTS’ ANSWER AND
ENTER DEFAULT JUDGMENT
MURRAY LEGAL, PLLC
Counsel for Plaintiff
170 Old Country Rd., Suite 608
Mineola, New York, 11501
Tel: (516) 260-7367
E-Mail: cmurray@murraylegalpllc.com
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TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................. I
PRELIMINARY STATEMENT...................................................................................................... 1
PROCEDURAL BACKGROUND ................................................................................................. 1
STANDARD OF REVIEW ............................................................................................................ 2
ARGUMENT .................................................................................................................................. 2
I. THE COURT SHOULD STRIKE DEFENDANTS’ ANSWER FOR WILLFUL REFUSAL
TO FULFILL THEIR DISCOVERY OBLIGATIONS. ............................................................ 2
CONCLUSION ............................................................................................................................... 4
22 NYCRR 202.8-B CERTIFICATION ......................................................................................... 5
i
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PRELIMINARY STATEMENT
Plaintiff, Pearl Delta Funding, LLC, makes this motion to strike the Answer filed by
Defendants, PEAK TITLE AGENCY CO. AKA PEAK TITLE CO and TOBBY JABLONSKI and
JUAN RUIZ JR., based upon their willful and contumacious refusal to produce any discovery in
this action, and enter a default judgment in the sum certain amount requested in the Verified
Complaint, $81,660.00.
A court may strike a party’s pleading as a sanction for willful failure to respond to
discovery. CPLR 3126. Here, the Defendants failed to produce any discovery by CPLR and Court
Ordered deadlines. Defendants' counsel has candidly admitted his clients have ignored all of his
communications about discovery for months. Accordingly, and for the reasons set forth herein, the
Court should grant the Plaintiff’s motion in its entirety.
PROCEDURAL BACKGROUND
This is an action in which the Plaintiff seeks to recover from the Defendants based upon
the Defendants’ breach of a purchase and sale of future receivables agreement (the “Agreement”)
and a personal guaranty of performance (the “Guaranty”). In Response to the Summons and
Verified Complaint (NYSCEF Doc. 1), the Defendants served an Answer comprised of denials and
a series of pure legal conclusions labelled affirmative defenses verified only by their attorney.
NYSCEF Doc. 5.
On February 16, 2023, Plaintiff served the Defendants with: 1)Plaintiff’s Demand for a
Verified Bill of Particulars (NYSCEF Doc. 17); 2) Plaintiff’s Notice For Discovery and Inspection
(NYSCEF Doc. 18); 3) a Preliminary Conference Request (NYSCEF Doc. 19); 4) Plaintiff’s
Notice of Deposition for Defendant PEAK TITLE AGENCY CO. AKA PEAK TITLE CO
(NYSCEF Doc. 21); 5) a Notice of Deposition for Defendant TOBBY JABLONSKI (NYSCEF
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Doc. 22); 6) a Notice of Deposition for Defendant Juan Ruiz Jr. (NYSCEF Doc. 23) (together the
“Discovery Demands”).
On May 22, 2023, the Court entered a Preliminary Conference Order directing that all
outstanding responses be served by June 21, 2023. NYSCEF Doc. 43, ¶¶2&6. The Defendants
never served any responses and have never produced any discovery.
STANDARD OF REVIEW
“CPLR 3126 provides that if a party ‘refuses to obey an order for disclosure or wilfully
[sic] fails to disclose information which the court finds ought to have been disclosed…, the court
may make such orders with regard to the failure or refusals as are just.’ Such an order may include
the entry of a default judgment against the non-complying party. It is within the trial court's
discretion to determine the nature and degree of the penalty, and the sanction will remain
undisturbed unless there has been a clear abuse of discretion. The sanction should be
‘commensurate with the particular disobedience it is designed to punish, and go no further than
that’.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., 22 NY3d 877, 880
(2013)(internal citations omitted)(Emphasis added).
ARGUMENT
I. THE COURT SHOULD STRIKE DEFENDANTS’ ANSWER FOR
WILLFUL REFUSAL TO FULFILL THEIR DISCOVERY
OBLIGATIONS.
CPLR § 3126 provides for the striking of a party’s pleading as a sanction for willful failure
to respond to discovery:
“If any party…refuses to obey an order for disclosure or willfully fails to disclose
information which the court finds ought to have been disclosed pursuant to this
article, the court may make such orders with regard to the failure or refusal as are
just, among them:
(3) an order striking out pleadings or parts thereof…or rendering a
judgment by default against the disobedient party.
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(emphasis added). CPLR § 3126 has been construed liberally to give Courts the discretion to
dismiss a party’s pleadings as a sanction for dilatory conduct in response to discovery demands.
See e.g. Zelz v. Wetanson, 67 N.Y.2d 711, 490 N.E.2d 852 (1986); Lowitt v. Korelitz, 152 A.D.2d
506 (1st Dept. 1989); Berman v. Szpilzinger, 180 A.D.2d 612 (1st Dept. 1992).
CPLR § 3101(a) provides that “[t]here shall be full disclosure of all matter material and
necessary in the prosecution or defense of an action, regardless of the burden of proof.” The words
“material and necessary” are to be given a broad and liberal interpretation, requiring the disclosure
of any facts “which will assist preparation for trial by sharpening the issues and reducing delay
and prolixity.” Allen v. Crowell-Collier Publishing Co., 21 N.Y.2d 403, 406 (1968). Indeed, it is
the aim of pretrial discovery, “that each party should know as much about the other’s claim as is
fairly and appropriately possible.” Padilla v. Damascus, 16 A.D.2d 71, 73 (1st Dept. 1962), aff’d,
12 N.Y.2d 1059 (1963).
The nature and degree of the penalty to be imposed pursuant to CPLR § 3126 lies within
the sound discretion of the trial court. See Kihl v. Pfeffer, 94 N.Y.2d 118, 122 (1999); Pearl v.
Pearl, 266 A.D. 2d, 366, 366 (2d Dep’t 1999) (noting “[i]t is well settled that a court has broad
discretion in determining the nature and degree of the penalty to be imposed where a party has
refused to comply with discovery demands”). The striking of a pleading may be appropriate where
there is a clear showing that the failure to comply with discovery demands is willful or
contumacious. Montemurro v. Memorial Sloan-Kettering Cancer Ctr., 94 A.D.3d 1066, 942
N.Y.S.2d 623 (2d Dep’t 2012). The willful or contumacious character of a party’s conduct can be
inferred from the party’s repeated failure to respond to demands or to comply with discovery
orders, coupled with inadequate excuses for such default. Id.
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Here, Plaintiff’s Discovery Demands are material and necessary to establishing Plaintiff’s
claims and rebutting Defendants’ defenses. The action arises from a purchase and sale of future
receivables. Plaintiff's demands are narrowly tailored to request: a) documents recording
Defendants' receivables; b) copies of agreements; c) communications between the parties; and d)
documents supporting Defendants' affirmative defenses. These documents are material and
necessary to Plaintiff's claims and the Defendants' defenses.
Plaintiff’s Discovery Demands were served in a timely fashion well in advance of the
directive of this Court’s Scheduling Order. Defendants’ failure to offer any responses or document
production in response to Plaintiff’s Discovery Demands, without properly objecting or proffering
a valid excuse for their noncompliance, permits an inference that Defendants’ noncompliance is
willful. See Smith v. Eastern Long Island Hosp., 263 A.D.2d 477, 692 N.Y.S.2d 726 (2d Dep’t
1999). Plaintiff has repeatedly attempted to meet and confer and gain compliance from Defendants'
counsel to no avail. Defendants have produced nothing and have never given any indication they
intend to comply with their discovery obligations. Quite simply, the Defendants have refused to
produce discovery for months and no amount of continued good faith efforts or lesser sanction
would be appropriate than the striking of their Answer and entry of a default judgment.
Accordingly, Plaintiff respectfully requests that the Court strike Defendants’ pleadings and
enter default judgment in favor of the Plaintiff on Plaintiff's breach of contract claims against them
in the sum certain amount requested in the Verified Complaint, $81,660.00, plus statutory interest
at 9% from the date of the breach, January 3, 2023.
CONCLUSION
For the reasons set forth above, the Court should:
i. Strike Defendants’ Answer;
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ii. Enter default judgment in favor of the Plaintiff and against the Defendants in the
sum certain amount requested in the Verified Complaint, $81,660.00, plus statutory
interest at 9% from the date of the breach, January 3, 2023; and
iii. Such other and further relief as this court deems proper.
Dated: July 6, 2023
Attorneys for Plaintiff
Murray Legal, PLLC
/s/ Christopher R. Murray
Christopher R. Murray, Esq.
170 Old Country Road, Suite 608
Mineola, New York 11501
Telephone: (516) 260-7367
E-Mail: cmurray@murraylegalpllc.com
To via NYSCEF:
Counsel for Defendants
22 NYCRR 202.8-b CERTIFICATION
I certify that, excluding the caption, table of contents, table of authorities, signature block,
and this certification, the foregoing contains 1,219 words and complies with the word count limits
imposed by the Uniform Rules of the Supreme Court. The foregoing word counts were calculated
by Microsoft Word.
Dated: July 6, 2023
/s/ Christopher R. Murray
Christopher R. Murray, Esq.
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Preview
FILED: NASSAU COUNTY CLERK 07/06/2023 11:41 AM INDEX NO. 600378/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 07/06/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -----------------------------------------------------------------X PEARL DELTA FUNDING, LLC, Plaintiff, Index No.: 600378/2023 -against- Returnable: 07/27/2023 PEAK TITLE AGENCY CO. AKA PEAK TITLE CO Hon. Conrad D. Singer and TOBBY JABLONSKI and JUAN RUIZ JR., Defendants. -----------------------------------------------------------------X PLAINTIFF PEARL DELTA FUDNING, LLC’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO STRIKE DEFENDANTS’ ANSWER AND ENTER DEFAULT JUDGMENT MURRAY LEGAL, PLLC Counsel for Plaintiff 170 Old Country Rd., Suite 608 Mineola, New York, 11501 Tel: (516) 260-7367 E-Mail: cmurray@murraylegalpllc.com 1 of 7 FILED: NASSAU COUNTY CLERK 07/06/2023 11:41 AM INDEX NO. 600378/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 07/06/2023 TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................. I PRELIMINARY STATEMENT...................................................................................................... 1 PROCEDURAL BACKGROUND ................................................................................................. 1 STANDARD OF REVIEW ............................................................................................................ 2 ARGUMENT .................................................................................................................................. 2 I. THE COURT SHOULD STRIKE DEFENDANTS’ ANSWER FOR WILLFUL REFUSAL TO FULFILL THEIR DISCOVERY OBLIGATIONS. ............................................................ 2 CONCLUSION ............................................................................................................................... 4 22 NYCRR 202.8-B CERTIFICATION ......................................................................................... 5 i 2 of 7 FILED: NASSAU COUNTY CLERK 07/06/2023 11:41 AM INDEX NO. 600378/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 07/06/2023 PRELIMINARY STATEMENT Plaintiff, Pearl Delta Funding, LLC, makes this motion to strike the Answer filed by Defendants, PEAK TITLE AGENCY CO. AKA PEAK TITLE CO and TOBBY JABLONSKI and JUAN RUIZ JR., based upon their willful and contumacious refusal to produce any discovery in this action, and enter a default judgment in the sum certain amount requested in the Verified Complaint, $81,660.00. A court may strike a party’s pleading as a sanction for willful failure to respond to discovery. CPLR 3126. Here, the Defendants failed to produce any discovery by CPLR and Court Ordered deadlines. Defendants' counsel has candidly admitted his clients have ignored all of his communications about discovery for months. Accordingly, and for the reasons set forth herein, the Court should grant the Plaintiff’s motion in its entirety. PROCEDURAL BACKGROUND This is an action in which the Plaintiff seeks to recover from the Defendants based upon the Defendants’ breach of a purchase and sale of future receivables agreement (the “Agreement”) and a personal guaranty of performance (the “Guaranty”). In Response to the Summons and Verified Complaint (NYSCEF Doc. 1), the Defendants served an Answer comprised of denials and a series of pure legal conclusions labelled affirmative defenses verified only by their attorney. NYSCEF Doc. 5. On February 16, 2023, Plaintiff served the Defendants with: 1)Plaintiff’s Demand for a Verified Bill of Particulars (NYSCEF Doc. 17); 2) Plaintiff’s Notice For Discovery and Inspection (NYSCEF Doc. 18); 3) a Preliminary Conference Request (NYSCEF Doc. 19); 4) Plaintiff’s Notice of Deposition for Defendant PEAK TITLE AGENCY CO. AKA PEAK TITLE CO (NYSCEF Doc. 21); 5) a Notice of Deposition for Defendant TOBBY JABLONSKI (NYSCEF Page 1 of 5 3 of 7 FILED: NASSAU COUNTY CLERK 07/06/2023 11:41 AM INDEX NO. 600378/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 07/06/2023 Doc. 22); 6) a Notice of Deposition for Defendant Juan Ruiz Jr. (NYSCEF Doc. 23) (together the “Discovery Demands”). On May 22, 2023, the Court entered a Preliminary Conference Order directing that all outstanding responses be served by June 21, 2023. NYSCEF Doc. 43, ¶¶2&6. The Defendants never served any responses and have never produced any discovery. STANDARD OF REVIEW “CPLR 3126 provides that if a party ‘refuses to obey an order for disclosure or wilfully [sic] fails to disclose information which the court finds ought to have been disclosed…, the court may make such orders with regard to the failure or refusals as are just.’ Such an order may include the entry of a default judgment against the non-complying party. It is within the trial court's discretion to determine the nature and degree of the penalty, and the sanction will remain undisturbed unless there has been a clear abuse of discretion. The sanction should be ‘commensurate with the particular disobedience it is designed to punish, and go no further than that’.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., 22 NY3d 877, 880 (2013)(internal citations omitted)(Emphasis added). ARGUMENT I. THE COURT SHOULD STRIKE DEFENDANTS’ ANSWER FOR WILLFUL REFUSAL TO FULFILL THEIR DISCOVERY OBLIGATIONS. CPLR § 3126 provides for the striking of a party’s pleading as a sanction for willful failure to respond to discovery: “If any party…refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: (3) an order striking out pleadings or parts thereof…or rendering a judgment by default against the disobedient party. Page 2 of 5 4 of 7 FILED: NASSAU COUNTY CLERK 07/06/2023 11:41 AM INDEX NO. 600378/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 07/06/2023 (emphasis added). CPLR § 3126 has been construed liberally to give Courts the discretion to dismiss a party’s pleadings as a sanction for dilatory conduct in response to discovery demands. See e.g. Zelz v. Wetanson, 67 N.Y.2d 711, 490 N.E.2d 852 (1986); Lowitt v. Korelitz, 152 A.D.2d 506 (1st Dept. 1989); Berman v. Szpilzinger, 180 A.D.2d 612 (1st Dept. 1992). CPLR § 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” The words “material and necessary” are to be given a broad and liberal interpretation, requiring the disclosure of any facts “which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.” Allen v. Crowell-Collier Publishing Co., 21 N.Y.2d 403, 406 (1968). Indeed, it is the aim of pretrial discovery, “that each party should know as much about the other’s claim as is fairly and appropriately possible.” Padilla v. Damascus, 16 A.D.2d 71, 73 (1st Dept. 1962), aff’d, 12 N.Y.2d 1059 (1963). The nature and degree of the penalty to be imposed pursuant to CPLR § 3126 lies within the sound discretion of the trial court. See Kihl v. Pfeffer, 94 N.Y.2d 118, 122 (1999); Pearl v. Pearl, 266 A.D. 2d, 366, 366 (2d Dep’t 1999) (noting “[i]t is well settled that a court has broad discretion in determining the nature and degree of the penalty to be imposed where a party has refused to comply with discovery demands”). The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful or contumacious. Montemurro v. Memorial Sloan-Kettering Cancer Ctr., 94 A.D.3d 1066, 942 N.Y.S.2d 623 (2d Dep’t 2012). The willful or contumacious character of a party’s conduct can be inferred from the party’s repeated failure to respond to demands or to comply with discovery orders, coupled with inadequate excuses for such default. Id. Page 3 of 5 5 of 7 FILED: NASSAU COUNTY CLERK 07/06/2023 11:41 AM INDEX NO. 600378/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 07/06/2023 Here, Plaintiff’s Discovery Demands are material and necessary to establishing Plaintiff’s claims and rebutting Defendants’ defenses. The action arises from a purchase and sale of future receivables. Plaintiff's demands are narrowly tailored to request: a) documents recording Defendants' receivables; b) copies of agreements; c) communications between the parties; and d) documents supporting Defendants' affirmative defenses. These documents are material and necessary to Plaintiff's claims and the Defendants' defenses. Plaintiff’s Discovery Demands were served in a timely fashion well in advance of the directive of this Court’s Scheduling Order. Defendants’ failure to offer any responses or document production in response to Plaintiff’s Discovery Demands, without properly objecting or proffering a valid excuse for their noncompliance, permits an inference that Defendants’ noncompliance is willful. See Smith v. Eastern Long Island Hosp., 263 A.D.2d 477, 692 N.Y.S.2d 726 (2d Dep’t 1999). Plaintiff has repeatedly attempted to meet and confer and gain compliance from Defendants' counsel to no avail. Defendants have produced nothing and have never given any indication they intend to comply with their discovery obligations. Quite simply, the Defendants have refused to produce discovery for months and no amount of continued good faith efforts or lesser sanction would be appropriate than the striking of their Answer and entry of a default judgment. Accordingly, Plaintiff respectfully requests that the Court strike Defendants’ pleadings and enter default judgment in favor of the Plaintiff on Plaintiff's breach of contract claims against them in the sum certain amount requested in the Verified Complaint, $81,660.00, plus statutory interest at 9% from the date of the breach, January 3, 2023. CONCLUSION For the reasons set forth above, the Court should: i. Strike Defendants’ Answer; Page 4 of 5 6 of 7 FILED: NASSAU COUNTY CLERK 07/06/2023 11:41 AM INDEX NO. 600378/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 07/06/2023 ii. Enter default judgment in favor of the Plaintiff and against the Defendants in the sum certain amount requested in the Verified Complaint, $81,660.00, plus statutory interest at 9% from the date of the breach, January 3, 2023; and iii. Such other and further relief as this court deems proper. Dated: July 6, 2023 Attorneys for Plaintiff Murray Legal, PLLC /s/ Christopher R. Murray Christopher R. Murray, Esq. 170 Old Country Road, Suite 608 Mineola, New York 11501 Telephone: (516) 260-7367 E-Mail: cmurray@murraylegalpllc.com To via NYSCEF: Counsel for Defendants 22 NYCRR 202.8-b CERTIFICATION I certify that, excluding the caption, table of contents, table of authorities, signature block, and this certification, the foregoing contains 1,219 words and complies with the word count limits imposed by the Uniform Rules of the Supreme Court. The foregoing word counts were calculated by Microsoft Word. Dated: July 6, 2023 /s/ Christopher R. Murray Christopher R. Murray, Esq. Page 5 of 5 7 of 7