Preview
INDEX NO. 150282/2011
(FILED: RICHMOND COUNTY CLERK 0870272013)
NYSCEF DOC. NO. 84 RECEIVED NYSCEF 08/02/2013
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
=
JEFFREY LEWIS,
Plaintiff,
Index No.: 150282/2011
-against-
AFFIRMATION IN
MICHAEL HARRISON, WAKEFERN FOOD SUPPORT OF MOTION
CORP., SHOPRITE OF STATEN ISLAND, FOR SANCTIONS FOR
BOWLES SECURITY GROUP, INC. KEVIN ON-COMPLIANCE WITH
MANNIX/SHOP RITE, KMLT LCC, MLTK LLC, DISCOVERY
JOHN DOE SECURITY COMPANIES 1-10, JOHN
DOES 1-10, JOHN DOE CORPORATIONS 1-10
Defendants.
_
MATTHEW H. MUELLER, ESQ., an attorney duly admitted to practice law before the
Courts of the State of New York, affirms the following to be true under the penalties of perjury:
1 I am an attorney at law of the State of New York and an associate with the law
firm of Clemente Mueller, P.A., attorneys of record for plaintiff, Jeffrey Lewis, and as such, I am
familiar with the facts and circumstances of this action based upon a review of the file
maintained in my office.
2 This is a personal injury action involving a stabbing of the plaintiff, Jeffrey Lewis
which occurred at a Shop Rite store located at 985 Richmond Avenue, Staten Island, New York,
on October 2, 2010. The perpetrator of the attack was defendant and Shop Rite Employee,
MICHAEL HARRISON, who was on duty at the store at the time of the stabbing. Defendants
WAKEFERN FOOD CORP and KMLT LLC are the entities that control the store in question.
3 I submit this Affirmation in support of Plaintiffs Motion for Sanctions for Non-
Compliance with discovery obligations.
FACTS
4 Plaintiffs First Combined Discovery Demands were served on Wakefern or about
February 22, 2012. A true and accurate copy of Plaintiffs First Combined Discovery Demands
are attached hereto as Exhibit A. By these demands, plaintiff demanded a copy of “any and all
video/or photographic surveillance purporting to show the plaintiff's injury concerning the
incident which is the subject matter of this lawsuit.”
5, In response, defendant Wakefern provided a digital video, 2 min. and 56 seconds
in length, which purports to show Michael Harrison waiting outside the store and chasing Jeffrey
Lewis. A true and accurate copy of that compact disc has been appended hereto as Exhibit B!
6 Upon further investigation, plaintiffs counsel learned that there were additional
videotapes created by surveillance cameras at the store concerning this incident.
7
On or about March 21, 2012, plaintiff served its Second Combined Discovery
Demands on defendant Wakefern. Plaintiffs Second Combined Demands required Wakefern to
produce additional video recordings, Specifically, this demand stated “Specifically, it is
demanded that you furnish all video recordings, photographs, or audio records depicting
Jeffrey Lewis at the Shop Rite Location at 985 Richmond Avenue, Staten Island, New York
for a period of two (2) hours prior to the time the attack took place. Upon information and
belief, WAKEFERN FOOD CORP is in possession of additional footage from security
cameras which depicts Mr. Harrison observing Mr. Lewis in the store prior to the
stabbing, walking back to the meat department to grab a knife, and walking outside to lie
in waiting for Mr. Lewis to exit the building.” A true and accurate copy of Plaintiffs Second
Combined Discovery Demands are attached hereto as Exhibit C.
‘ Photocopies of the Compact Disc labels have been appended to this motion for purposes of E-Filing. Hard copies
of the actual discs will be sent to the court for via regular mail.
8 In response to this demand, Wakefern responded that “the previously provided
video is the only video in existence regarding the subject incident." A true and accurate copy of
Wakefern’s response to Plaintiffs Second Combined Demands is attached hereto as Exhibit D.
9 On September 14, 2012 the Court entered an order amending the complaint to
name KMLT LLC as a defendant in this action. KMLT LLC filed its answer on September 17,
2012.
10. On September 17, 2012, plaintiff served its Fourth Combined Discovery Demands
on both Wakefern and KMLT LLC. Again, plaintiff demanded from both entities “any and all
video and/or photographic surveillance purporting to show Plaintiff's injury concerning the
incident, which is the subject matter of this lawsuit.” A true and accurate copy of Plaintiff's
Fourth Combined Discovery Demands are attached hereto as Exhibit E.
Als In response to Plaintiff's Fourth Combined Discovery Demands, defendants
Wakefern and KMLT LLC again stated “all photographs, video and audio recordings in the
possession of these defendants has been previously provided in response the plaintiffs prior
demands." A true and accurate copy of the Defendants’ response is attached hereto as Exhibit F.
12. In response to Wakefern's initial denial that videos existed, plaintiff's counsel
filed a FOIL request with the New York City Police Department for the videos. A true and
accurate copy of the FOIL demand is attached hereto as Exhibit G.
13%: The FOIL request was initially denied, however an administrative appeal to the
NYPD Legal Division ordered the department to produce the records. A true and accurate of the
Legal Division’s letter order is attached hereto as Exhibit H.
14. In response to the Plaintiffs FOIL request, the NYPD produced redacted
documents mirroring those that were produced pursuant to subpoena in this matter; however, no
videos were produced.
15. On or about November, 13 2012, plaintiff's counsel filed and served an Article 78
Petition on the NYPD in New York County under Index No. 157936-2012 seeking to compel the
NYPD to produce the videos. A true and accurate of the Article 78 Petition (excluding exhibits)
is attached hereto as Exhibit I.
16. On the return date for the Petition, counsel for the NYPD represented to
Plaintiff's counsel that all videos had been turned over to the office of the Richmond County
District Attorney.
17. On the basis of this information obtained from counsel for the NYPD, Plaintiff
served a so-ordered subpoena on the office of the Richmond County District Attorney
demanding the production of all videos related to the incident which is the subject of this lawsuit.
A true and accurate of the so-ordered subpoena is attached hereto as Exhibit J.
18. The District Attorney did not respond to the subpoena on the return date, and
Plaintiff's counsel was required to file a Motion to Compel a response to the subpoena.
19. The Office of the District Attorney responded to the motion to compel on
February 26, 2013. A true and accurate copy of the District Attorney’s initial opposition to the
Motion to Compel is attached hereto as Exhibit K. Following a court appearance by all parties to
this action and the District Attorney's Office, the motion was converted into a Motion to Unseal
Grand Jury Records and transferred to the Criminal Part of the New York Supreme Court,
Richmond County for decision.
20. After the Motion to Compel was transferred to the Criminal Part, the Office of the
District Attorney, by and through ADA Michael Schollar, Esq., submitted an additional attorney
certification, 1) stating that the District Attorney's office was in possession of the video
recordings, 2) stating that the video recordings had been received from either Wakefern or
KMLT LLC, and 3) requesting that the Court enter an order unsealing the video recordings. A
true and accurate copy of the District Attorney’s Office’s certification in support of the Plaintiff's
Motion to Unseal is attached hereto as Exhibit L.
21. Additionally, at his deposition, a representative of KMLT LLC admitted that his
company has full control over all videotapes, and that a video of an assault, or a video turned
over to the police, would have been saved by the company. A true and accurate copy of the
deposition of Michael Koch, representative of KMLT, is attached hereto as Exhibit M.
22. The court entered an order unsealing the video recordings on April 12, 2013. A
true and accurate copy of that order is attached hereto as Exhibit N.
234 Subsequent to the entry of the order unsealing the videos, the District Attorney's
Office produced 11 compact discs of footage depicting Michael Harrison in the store prior to the
attack which is the subject of this lawsuit. As suspected by counsel, these compact discs include
footage of Michael Harrison roaming around the store for some time prior to the attack, footage
of Michael Harrison grabbing a loose knife from the meat department and walking outside to
wait for Jeffrey Lewis to emerge from the exit, footage of Michael Harrison chasing Jeffrey
Lewis to the parking lot, and footage of Michael Harrison fleeing the scene. All of this footage
was produced at the Shop Rite store by either defendant Wakefern or defendant KMLT LLC (see
Exhibit J at Paragraph 10, 18, and 19). These videos were turned over to the NYPD by one of the
Shop Rite entities, but were not produced in discovery despite three demands for Discovery and
Inspection from plaintiff. True and accurate copies of the 11 compact discs received from the
District Attorney’s office are attached hereto as Exhibit
0
24. Plaintiff's counsel has spent a total of 50.6 hours in connection with retrieval of
the video recordings. Usual hourly rates for the law firm of Clemente Mueller P.A. are $450.00
per hour for partners, $175.00 to $225.00 per hour for associates, and $125 per hour for
paralegals. When broken down, the total amount of time spent is worth $11,485.00 in legal fees.
A true and accurate accounting of all time spent in retrieving the video recordings is appended
hereto as Exhibit P.
25. Additionally, plaintiff's counsel has expended an actual amount of $2,697.25 in
connection with retrieving the video recordings. A true and accurate accounting of all monies
expended in retrieving the video recordings is appended hereto as Exhibit Q.
ARGUMENT
26. “There shall be full disclosure of all matter material and necessary in the
prosecution or defense of an action, regardless of the burden of proof, by...a party” CPLR
3101(a)(1). Moreover, “all parties and their counsel have an obligation to make good faith
efforts to fulfill their discovery and disclosure obligations and to resolve all discovery disputes
before seeking judicial intervention...[d]ilatory tactics, evasive conduct, and/or a pattern of
noncompliance with discovery and disclosure obligations may give rise to an inference of willful
and contumacious conduct, and may result in severe and adverse consequences and sanctions.”
Lewis v. City of New York, 17 Misc 3d 559, 563 (Sup. Ct. 2007).
? Photocopies of the Compact Disc labels have been appended to this motion for purposes of E-Filing. Hard copies
of the actual discs will be sent to the court for via regular mail.
DH Willful or contumacious refusal to produce materials, ignoring a notice for
discovery and inspection, removal or destruction of property sought to be produced and
inspected, falsely denying the possession of documents sought to be produced, dilatory tactics,
evasive conduct, and willful obstruction of discovery proceedings have all been recognized as
situations that warrant the imposition of sanctions. Lewis, supra at 561, Miller v. City of New
York, 15 Misc. 3d 1127(A) (Sup. Ct. 2007), Washington v. City of New York, 18 Mise 3d
1109(A).
28. Failure to comply with discovery obligations may result in the court entering an
Order dismissing the Plaintiffs complaint, or striking a Defendant’s Answer. CPLR 3126. See
also Lewis, supra at 564.
29, The court has the inherent power to impose a monetary sanction when a litigant,
willfully or in bad faith, fails to comply with a discovery obligation. See Figdor v. City of New
York, 33 A.D. 3d 560, 560-561 (1* Dept. 2006) (upholding an order striking answer if sanction
of $10,000 was not paid in 30 days), Anonymous v. High School For Envtl. Studies, 32 A.D. 3d
353, 354 (1 Dept. 2006) (upholding an order striking answer if sanction of $7,500 was not paid
in 30 days), Lewis, supra at 564, 570 (recognizing a trial court’s power to uphold “severe
monetary sanctions”). Upon learning that a party has failed to comply with discovery
obligations, the court has an affirmative legal obligation to take additional steps as are necessary
to ensure future compliance. Id, at 561.
30. In this matter, the willfulness of the failure to produce the videos can be easily
and clearly inferred. In response to three discovery demands, the defendants, Wakefern and
KMLT LLC, repeatedly and evasively, insisted that the three minute and fifty six second video
was the only surveillance video in existence concerning the attack which is the subject of this
lawsuit. See Exhibit A through Exhibit E. Despite their insistence that there was no additional
surveillance video footage, there was, in existence, approximately one half hour of footage to the
police, including footage of Michael Harrison obtaining the knife from the meat department, and
footage of Michael Harrison fleeing the scene. Exhibit O.
31. As per the certification of Michael Shollar, the police and/or District Attorney’s
office received this information from “Shop Rite,” Exhibit L at Paragraph 10, 18, 19. (As noted
above, Wakefern and/or KMLT LLC are the entities that operate under the “Shop Rite” name.)
32. Moreover, at his deposition, Michael Koch, a representative of KMLT LLC,
testified that KMLT has control over the video footage taken at surveillance cameras in the store,
and that any footage turned over to the police would have been saved by the defendant. Exhibit
Mat 116-117.
33. Had the defendants, Wakefern and KMLT LLC, complied with their discovery
obligations, Plaintiff's would not have had to serve a FOIL request, appeal a FOIL request, file
an Article 78 Proceeding, serve a so-ordered subpoena, or move to compel a response to the
subpoena. As a result of the defendants’ non compliance, Plaintiffs counsel was required to
expend 50.6 hours using legal process to obtain the video from a Third Party, when the
defendants were, or should have been, in possession of them all along.
34. There are only two conceivable scenarios for the defendants’ non compliance
with Plaintiffs demands for Discovery and Inspection: a) The defendants willfully failed to
disclose the videotapes or b) The defendants no longer had possession of the videos.
35. If the non-compliance by Wakefern and KMLT LLC is the result of willful failure
to produce documentary which harms their case, the court clearly has the power to grant
sanctions.
36. Even if there is a claim that the videos were lost, destroyed, stolen, or otherwise
no longer in their possession, there are still ample grounds for the imposition of sanctions; This
case involves a very brutal assault and battery committed by an on-duty Shop Rite employee that
left a customer hospitalized for two months, and resulted in two and a half years of incarceration
for the employee. Frankly, if KMLT or Wakefern no longer has possession of surveillance
footage of the employee obtaining the knife, there is ABSOLUTELY NO VALID DEFENSE
for losing the footage. Such a lapse in record keeping is inexcusable, and is sanctionable in and
of itself.
37. Additionally, there is no excuse for the repeated denials of the existence of the
footage by both KMLT LLC and Wakefern. Had employees of KMLT LLC and Wakefern
conducted a good faith search for video footage, the response to the plaintiff's repeated Demands
for Discovery and Inspection would have disclosed that additional video tapes had been turned
over to the police, rather than an outright denial of their existence.
38. This issue has been previously addressed by the Appellate Division, an
Department in Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 A.D. 3d 201. In Arpino, the court
held that defense counsel’s paralegal’s statement that photographs and videotapes did not exist
was in “in derogation of defense counsel’s good faith disclosure obligations.” Id. at 208. In
Arpino, the Appellate Division allowed ultimate relief in the form of precluding evidence at trial.
39. In this case, an order precluding evidence from being entered at trial will serve no
practical purpose, as such an order would actually benefit the defendants. Additionally, an order
striking the defendants’ answer is unduly harsh, as the videos were ultimately obtained, albeit,
nearly a year later, and at great time and expense to Plaintiff's counsel. Here, the appropriate
sanction is a monetary award of reasonable counsel fees incurred by plaintiffs counsel in
seeking the videos, as it is the sanction that appropriately fits the conduct.
CONCLUSION
40. For the foregoing reasons, the Plaintiff respectfully requests that the court enter an
order requiring the defendants, Wakefern and KMLT LLC to pay counsel fees for all time
expended in obtaining the video tapes through legal process, and if such fees are not paid within
30 days, allowing the plaintiff to move to strike the defendants’ Answer.
a
yer
MATTHEW H. MUELLER, ESQ.
Clemente Mueller P.A.
Attorneys for Plaintiff, Jeffrey Lewis
5 Penn Plaza, 19" Floor
New York, New York 10001
212.425.5005
Dated: August 1, 2013
New York, New York
Preview
INDEX NO. 150282/2011 (FILED: RICHMOND COUNTY CLERK 0870272013) NYSCEF DOC. NO. 84 RECEIVED NYSCEF 08/02/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND = JEFFREY LEWIS, Plaintiff, Index No.: 150282/2011 -against- AFFIRMATION IN MICHAEL HARRISON, WAKEFERN FOOD SUPPORT OF MOTION CORP., SHOPRITE OF STATEN ISLAND, FOR SANCTIONS FOR BOWLES SECURITY GROUP, INC. KEVIN ON-COMPLIANCE WITH MANNIX/SHOP RITE, KMLT LCC, MLTK LLC, DISCOVERY JOHN DOE SECURITY COMPANIES 1-10, JOHN DOES 1-10, JOHN DOE CORPORATIONS 1-10 Defendants. _ MATTHEW H. MUELLER, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under the penalties of perjury: 1 I am an attorney at law of the State of New York and an associate with the law firm of Clemente Mueller, P.A., attorneys of record for plaintiff, Jeffrey Lewis, and as such, I am familiar with the facts and circumstances of this action based upon a review of the file maintained in my office. 2 This is a personal injury action involving a stabbing of the plaintiff, Jeffrey Lewis which occurred at a Shop Rite store located at 985 Richmond Avenue, Staten Island, New York, on October 2, 2010. The perpetrator of the attack was defendant and Shop Rite Employee, MICHAEL HARRISON, who was on duty at the store at the time of the stabbing. Defendants WAKEFERN FOOD CORP and KMLT LLC are the entities that control the store in question. 3 I submit this Affirmation in support of Plaintiffs Motion for Sanctions for Non- Compliance with discovery obligations. FACTS 4 Plaintiffs First Combined Discovery Demands were served on Wakefern or about February 22, 2012. A true and accurate copy of Plaintiffs First Combined Discovery Demands are attached hereto as Exhibit A. By these demands, plaintiff demanded a copy of “any and all video/or photographic surveillance purporting to show the plaintiff's injury concerning the incident which is the subject matter of this lawsuit.” 5, In response, defendant Wakefern provided a digital video, 2 min. and 56 seconds in length, which purports to show Michael Harrison waiting outside the store and chasing Jeffrey Lewis. A true and accurate copy of that compact disc has been appended hereto as Exhibit B! 6 Upon further investigation, plaintiffs counsel learned that there were additional videotapes created by surveillance cameras at the store concerning this incident. 7 On or about March 21, 2012, plaintiff served its Second Combined Discovery Demands on defendant Wakefern. Plaintiffs Second Combined Demands required Wakefern to produce additional video recordings, Specifically, this demand stated “Specifically, it is demanded that you furnish all video recordings, photographs, or audio records depicting Jeffrey Lewis at the Shop Rite Location at 985 Richmond Avenue, Staten Island, New York for a period of two (2) hours prior to the time the attack took place. Upon information and belief, WAKEFERN FOOD CORP is in possession of additional footage from security cameras which depicts Mr. Harrison observing Mr. Lewis in the store prior to the stabbing, walking back to the meat department to grab a knife, and walking outside to lie in waiting for Mr. Lewis to exit the building.” A true and accurate copy of Plaintiffs Second Combined Discovery Demands are attached hereto as Exhibit C. ‘ Photocopies of the Compact Disc labels have been appended to this motion for purposes of E-Filing. Hard copies of the actual discs will be sent to the court for via regular mail. 8 In response to this demand, Wakefern responded that “the previously provided video is the only video in existence regarding the subject incident." A true and accurate copy of Wakefern’s response to Plaintiffs Second Combined Demands is attached hereto as Exhibit D. 9 On September 14, 2012 the Court entered an order amending the complaint to name KMLT LLC as a defendant in this action. KMLT LLC filed its answer on September 17, 2012. 10. On September 17, 2012, plaintiff served its Fourth Combined Discovery Demands on both Wakefern and KMLT LLC. Again, plaintiff demanded from both entities “any and all video and/or photographic surveillance purporting to show Plaintiff's injury concerning the incident, which is the subject matter of this lawsuit.” A true and accurate copy of Plaintiff's Fourth Combined Discovery Demands are attached hereto as Exhibit E. Als In response to Plaintiff's Fourth Combined Discovery Demands, defendants Wakefern and KMLT LLC again stated “all photographs, video and audio recordings in the possession of these defendants has been previously provided in response the plaintiffs prior demands." A true and accurate copy of the Defendants’ response is attached hereto as Exhibit F. 12. In response to Wakefern's initial denial that videos existed, plaintiff's counsel filed a FOIL request with the New York City Police Department for the videos. A true and accurate copy of the FOIL demand is attached hereto as Exhibit G. 13%: The FOIL request was initially denied, however an administrative appeal to the NYPD Legal Division ordered the department to produce the records. A true and accurate of the Legal Division’s letter order is attached hereto as Exhibit H. 14. In response to the Plaintiffs FOIL request, the NYPD produced redacted documents mirroring those that were produced pursuant to subpoena in this matter; however, no videos were produced. 15. On or about November, 13 2012, plaintiff's counsel filed and served an Article 78 Petition on the NYPD in New York County under Index No. 157936-2012 seeking to compel the NYPD to produce the videos. A true and accurate of the Article 78 Petition (excluding exhibits) is attached hereto as Exhibit I. 16. On the return date for the Petition, counsel for the NYPD represented to Plaintiff's counsel that all videos had been turned over to the office of the Richmond County District Attorney. 17. On the basis of this information obtained from counsel for the NYPD, Plaintiff served a so-ordered subpoena on the office of the Richmond County District Attorney demanding the production of all videos related to the incident which is the subject of this lawsuit. A true and accurate of the so-ordered subpoena is attached hereto as Exhibit J. 18. The District Attorney did not respond to the subpoena on the return date, and Plaintiff's counsel was required to file a Motion to Compel a response to the subpoena. 19. The Office of the District Attorney responded to the motion to compel on February 26, 2013. A true and accurate copy of the District Attorney’s initial opposition to the Motion to Compel is attached hereto as Exhibit K. Following a court appearance by all parties to this action and the District Attorney's Office, the motion was converted into a Motion to Unseal Grand Jury Records and transferred to the Criminal Part of the New York Supreme Court, Richmond County for decision. 20. After the Motion to Compel was transferred to the Criminal Part, the Office of the District Attorney, by and through ADA Michael Schollar, Esq., submitted an additional attorney certification, 1) stating that the District Attorney's office was in possession of the video recordings, 2) stating that the video recordings had been received from either Wakefern or KMLT LLC, and 3) requesting that the Court enter an order unsealing the video recordings. A true and accurate copy of the District Attorney’s Office’s certification in support of the Plaintiff's Motion to Unseal is attached hereto as Exhibit L. 21. Additionally, at his deposition, a representative of KMLT LLC admitted that his company has full control over all videotapes, and that a video of an assault, or a video turned over to the police, would have been saved by the company. A true and accurate copy of the deposition of Michael Koch, representative of KMLT, is attached hereto as Exhibit M. 22. The court entered an order unsealing the video recordings on April 12, 2013. A true and accurate copy of that order is attached hereto as Exhibit N. 234 Subsequent to the entry of the order unsealing the videos, the District Attorney's Office produced 11 compact discs of footage depicting Michael Harrison in the store prior to the attack which is the subject of this lawsuit. As suspected by counsel, these compact discs include footage of Michael Harrison roaming around the store for some time prior to the attack, footage of Michael Harrison grabbing a loose knife from the meat department and walking outside to wait for Jeffrey Lewis to emerge from the exit, footage of Michael Harrison chasing Jeffrey Lewis to the parking lot, and footage of Michael Harrison fleeing the scene. All of this footage was produced at the Shop Rite store by either defendant Wakefern or defendant KMLT LLC (see Exhibit J at Paragraph 10, 18, and 19). These videos were turned over to the NYPD by one of the Shop Rite entities, but were not produced in discovery despite three demands for Discovery and Inspection from plaintiff. True and accurate copies of the 11 compact discs received from the District Attorney’s office are attached hereto as Exhibit 0 24. Plaintiff's counsel has spent a total of 50.6 hours in connection with retrieval of the video recordings. Usual hourly rates for the law firm of Clemente Mueller P.A. are $450.00 per hour for partners, $175.00 to $225.00 per hour for associates, and $125 per hour for paralegals. When broken down, the total amount of time spent is worth $11,485.00 in legal fees. A true and accurate accounting of all time spent in retrieving the video recordings is appended hereto as Exhibit P. 25. Additionally, plaintiff's counsel has expended an actual amount of $2,697.25 in connection with retrieving the video recordings. A true and accurate accounting of all monies expended in retrieving the video recordings is appended hereto as Exhibit Q. ARGUMENT 26. “There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by...a party” CPLR 3101(a)(1). Moreover, “all parties and their counsel have an obligation to make good faith efforts to fulfill their discovery and disclosure obligations and to resolve all discovery disputes before seeking judicial intervention...[d]ilatory tactics, evasive conduct, and/or a pattern of noncompliance with discovery and disclosure obligations may give rise to an inference of willful and contumacious conduct, and may result in severe and adverse consequences and sanctions.” Lewis v. City of New York, 17 Misc 3d 559, 563 (Sup. Ct. 2007). ? Photocopies of the Compact Disc labels have been appended to this motion for purposes of E-Filing. Hard copies of the actual discs will be sent to the court for via regular mail. DH Willful or contumacious refusal to produce materials, ignoring a notice for discovery and inspection, removal or destruction of property sought to be produced and inspected, falsely denying the possession of documents sought to be produced, dilatory tactics, evasive conduct, and willful obstruction of discovery proceedings have all been recognized as situations that warrant the imposition of sanctions. Lewis, supra at 561, Miller v. City of New York, 15 Misc. 3d 1127(A) (Sup. Ct. 2007), Washington v. City of New York, 18 Mise 3d 1109(A). 28. Failure to comply with discovery obligations may result in the court entering an Order dismissing the Plaintiffs complaint, or striking a Defendant’s Answer. CPLR 3126. See also Lewis, supra at 564. 29, The court has the inherent power to impose a monetary sanction when a litigant, willfully or in bad faith, fails to comply with a discovery obligation. See Figdor v. City of New York, 33 A.D. 3d 560, 560-561 (1* Dept. 2006) (upholding an order striking answer if sanction of $10,000 was not paid in 30 days), Anonymous v. High School For Envtl. Studies, 32 A.D. 3d 353, 354 (1 Dept. 2006) (upholding an order striking answer if sanction of $7,500 was not paid in 30 days), Lewis, supra at 564, 570 (recognizing a trial court’s power to uphold “severe monetary sanctions”). Upon learning that a party has failed to comply with discovery obligations, the court has an affirmative legal obligation to take additional steps as are necessary to ensure future compliance. Id, at 561. 30. In this matter, the willfulness of the failure to produce the videos can be easily and clearly inferred. In response to three discovery demands, the defendants, Wakefern and KMLT LLC, repeatedly and evasively, insisted that the three minute and fifty six second video was the only surveillance video in existence concerning the attack which is the subject of this lawsuit. See Exhibit A through Exhibit E. Despite their insistence that there was no additional surveillance video footage, there was, in existence, approximately one half hour of footage to the police, including footage of Michael Harrison obtaining the knife from the meat department, and footage of Michael Harrison fleeing the scene. Exhibit O. 31. As per the certification of Michael Shollar, the police and/or District Attorney’s office received this information from “Shop Rite,” Exhibit L at Paragraph 10, 18, 19. (As noted above, Wakefern and/or KMLT LLC are the entities that operate under the “Shop Rite” name.) 32. Moreover, at his deposition, Michael Koch, a representative of KMLT LLC, testified that KMLT has control over the video footage taken at surveillance cameras in the store, and that any footage turned over to the police would have been saved by the defendant. Exhibit Mat 116-117. 33. Had the defendants, Wakefern and KMLT LLC, complied with their discovery obligations, Plaintiff's would not have had to serve a FOIL request, appeal a FOIL request, file an Article 78 Proceeding, serve a so-ordered subpoena, or move to compel a response to the subpoena. As a result of the defendants’ non compliance, Plaintiffs counsel was required to expend 50.6 hours using legal process to obtain the video from a Third Party, when the defendants were, or should have been, in possession of them all along. 34. There are only two conceivable scenarios for the defendants’ non compliance with Plaintiffs demands for Discovery and Inspection: a) The defendants willfully failed to disclose the videotapes or b) The defendants no longer had possession of the videos. 35. If the non-compliance by Wakefern and KMLT LLC is the result of willful failure to produce documentary which harms their case, the court clearly has the power to grant sanctions. 36. Even if there is a claim that the videos were lost, destroyed, stolen, or otherwise no longer in their possession, there are still ample grounds for the imposition of sanctions; This case involves a very brutal assault and battery committed by an on-duty Shop Rite employee that left a customer hospitalized for two months, and resulted in two and a half years of incarceration for the employee. Frankly, if KMLT or Wakefern no longer has possession of surveillance footage of the employee obtaining the knife, there is ABSOLUTELY NO VALID DEFENSE for losing the footage. Such a lapse in record keeping is inexcusable, and is sanctionable in and of itself. 37. Additionally, there is no excuse for the repeated denials of the existence of the footage by both KMLT LLC and Wakefern. Had employees of KMLT LLC and Wakefern conducted a good faith search for video footage, the response to the plaintiff's repeated Demands for Discovery and Inspection would have disclosed that additional video tapes had been turned over to the police, rather than an outright denial of their existence. 38. This issue has been previously addressed by the Appellate Division, an Department in Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 A.D. 3d 201. In Arpino, the court held that defense counsel’s paralegal’s statement that photographs and videotapes did not exist was in “in derogation of defense counsel’s good faith disclosure obligations.” Id. at 208. In Arpino, the Appellate Division allowed ultimate relief in the form of precluding evidence at trial. 39. In this case, an order precluding evidence from being entered at trial will serve no practical purpose, as such an order would actually benefit the defendants. Additionally, an order striking the defendants’ answer is unduly harsh, as the videos were ultimately obtained, albeit, nearly a year later, and at great time and expense to Plaintiff's counsel. Here, the appropriate sanction is a monetary award of reasonable counsel fees incurred by plaintiffs counsel in seeking the videos, as it is the sanction that appropriately fits the conduct. CONCLUSION 40. For the foregoing reasons, the Plaintiff respectfully requests that the court enter an order requiring the defendants, Wakefern and KMLT LLC to pay counsel fees for all time expended in obtaining the video tapes through legal process, and if such fees are not paid within 30 days, allowing the plaintiff to move to strike the defendants’ Answer. a yer MATTHEW H. MUELLER, ESQ. Clemente Mueller P.A. Attorneys for Plaintiff, Jeffrey Lewis 5 Penn Plaza, 19" Floor New York, New York 10001 212.425.5005 Dated: August 1, 2013 New York, New York