Preview
FILED: NEW YORK COUNTY CLERK 04/30/2019 04:12 PM INDEX NO. 154432/2018
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 04/30/2019
File No. 30076
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------··-------------··----··------------·-X
MARIA ARGUETA CRUZ,
AFFIRMATION IN
Plaintiff, SUPPORT
-against- INDEX #: 154432/2018
173 BROADWAY ASSOCIATES LL.C. and LINDO HON. W. FRANC PERRY,
AMANECER GROCERY CORP., III
Defendants.
------------------------------------------------------------X
ANDREW BOKAR, 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:
That I am associated with SUBIN ASSOCIATES, LLP, attorney for the plaintiff herein
and am familiar with the facts and circumstances herein, except as to those alleged upon
information and belief, and as to those I verily believe them to be true.
That I make this affirmation in support of plaintiff's motion for an Order 1) Pursuant to
§3126 of the CPLR striking defendant LINDO AMANECER GROCERY CORP 's Answer for
failing to respond to the Preliminary Conference Order; 2) Or in the alternative, precluding said
defendant from offering testimony at the time of trial;and 3) For such other and further relief as
this Honorable Court deems just and proper.
A Preliminary Conference was held on September 25, 2018. To date, defendant LINDO
AMANECER GROCERY CORP. has failed to provide a response to the Order. (See copy of
Preliminary Conference Order annexed hereto as Exhibit "A").
A So-Ordered Stipulation was entered into on February 26, 2019, ordering defendant
LINDO AMANECER GROCERY CORP. to respond to plaintiff's good faith letter dated
February l 4,2019. However, defendant LINDO AMANECER GROCERY CORP. failed to
respond (See copy of Stipulation Order annexed hereto as Exhibit "B").
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Circumstanc_es Dictate That No Order or Motion to Compel Is Necessary Prior to Granting
Relief Sought by Plaintiff
There is no requirement that an order compelling disclosure be obtained prior to seeking
sanctions under CPLR §3126, See; Town of East Greenbusts v. As/tland C/tem. Oil Corp., Div.
of Ashland Oil, Inc., 99 A.D.2d 604, 471 N.Y.S.2d 709 (3d Dept. 1984). In fact, a leading
authority explains that itis "preferable to proceed directly under CPLR 3126 since this eliminates
an unnecessary step and is more consistent with the entire CPLR which is designed to lessen
calendar congestion by permitting disclosure on notice rather than by order."3A Weinstein, Korn&
Miller, New York Civil Practice-CPLR P 3124.03 at p. 31-476.5 (Matthew Bender 1990)
(footnote omitted).
Where a defendant repeatedly violates court orders and/or discovery demands, striking of
the answer is appropriate unless defendants offer a reasonable excuse, The Second Department
explains:
"The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter
of discretion (see Kihl v.Pfeffer, 94 NY2d 118, 122, 722 N.E.2d 55, 700 N.Y.S.2d 87; Zigz
v.Wetanson, 67 NY2d 71 1, 490 N.E.2d 852, 499 N.Y.S.2d 933; Morano v. Westchester
Paving & Sealing Corp., 7 AD3d 495, 776 N.Y.S.2d 83; Novis v. Benes, 268 AD2d 464,
701 N.Y.S.2d 914). Although striking a pleading is a drastic remedy, itis appropriate where
there is a clear showing that the failure to comply with discovery demands was willful or
contumacious (see Frias v. Fortini, 240 AD2d 467, 658 N.Y.S.2d 435;.cf. Novis v. Benes,
268 AD2d 464, 701 N.Y.S.2d 914), It can be inferred that a party's conduct is willful and
contumacious when it repeatedly fails to comply with discovery demands and court
orders compelling disclosure without providing a reasonable excuse for
noncompliance (see Mei Yan Zhang v. Santana, 52 AD3d 484, 485, 860 N.Y.S.2d 129;
Dinstber v. Geico Ins. Co., 32 AD3d 893, 820 N.Y.S.2d 804; Kroll v. Parkway Plaza Joint
Venture, 10 AD3d 633, 634, 781 N.Y.S.2d 613; Ordonez v. Guerra, 295 AD2d 325, 743
N.Y.S.2d 156; Cutolo v. Khalife, 242 AD2d 661, 664 N.Y.S.2d 939; Frias v. Fortini, 240
AD2d 467, 658 N.Y.S.2d 435; Kubacka v. Town of North Hempstead, 240 AD2d 374, 657
N.Y.S.2d 770). If the credibility of court orders and the integrity of our judicial system are
to be maintained, a litigant cannot ignore court orders with imounity (Kihl v. Pfeffer,
94 NY2d at 123). Northfield Ins. Co. v. Model Towinµ & Recovery, 2009 NY Slip Op
4878, 1 (2d Dep't 2009) (emphasis added) (internal quotations omitted).
Defendant has not provided a reasonable excuse for the production of ordered documentary
evidence. Therefore, defendant's willful and contumacious action can be inferred.
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conditionall
Any Order issued pursuant to CPLR §3124 should also include a sanction
pursuant to CPLR §3126 for defendant's failure to appear for the deposition (not subject to
adjournment) as ordered by this court as a result of the instant motion. In the event defendants fail
to comply with any Order this Court issues pursuant to CPLR §3124, then upon the expiration date
for defendants to comply with this Court's directive in the CPLR §3124 Order, then defendant's
answer should be automatically and unconditionally stricken. This penalty pursuant to CPLR
§3126 should be self-executing in nature such that upon the defendant's failure to comply with
this Court's Order resulting from this Motion, the defendants are subject to a stricken answer,
without the plaintiff resorting to further motion practice to trigger the penalty pursuant to CPLR
§3126.
The plaintiff's request for sanctions under CPLR §3126 is appropriate, and some penalty
should ensue against defendants under that section. This Court is not limited to the sanctions
herein2
specifically requested and is not limited to the sanctions specifically stated within CPLR
§3126 and this Court may make such order as is just, which may include imposition of monetary
sanctions against defendants.
defendants'
Where the motion court denied plaintiff s motion to strike answer for failure
to comply with discovery, the Appellate Division modified said order. In Figdor v. City of New
York, 33 A.D.3d 560, 823 N.Y.S.2d 385 (1st Dept. 2006), the Appellate Division, in so modifying,
directed that the answer be struck unless, within 30 days of the service of the order, the defendants
paid the plaintiff s attorneys the sum of $10,000.
sanction,"
Imposition of a "conditional is appropriate shortof an Order granting a motion pursuant to CPLR 3 126 in
the first
instance. See, e.g,PhlHips v. Serbulth,157 A.D.2d 902, 550 N. YS.2d 171 (3dDept. 1990).
just."
CPLR 3 126 provides "the courtmay make such orders ...as are This includes imposition of monetary
sanctions [see,e.g.,Imex Discovery Resources, Inc.v. AllstateHostery Mills,ine., 156 A.D.2d 137, 548
N.YS.2d183 (lstDept. 1989) ; Renford v. Ligurdo, 104 A.D.2d 717, 480 N.YS.2d 655 (4th Dept. 1984)].
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Thus, in the instant matter, an order containing a conditional sanction against defendant
should issue in conjunction with any Order to compel.
Notably, the Court in Figdor (supra) also stated "We take this opportunity to encourage
the IAS courts to employ a more proactive approach in such circumstances; upon learning that a
party has repeatedly failed to comply with discovery orders, they have an affirmative obligation to
compliance"
take such additional steps as are necessary to ensure future Figdor v. City of New
York, 33 A.D.3d at 561, 823 N.Y S.2d at 386.
In the instant matter, the discovery sought is so very crucial and no risk should be taken
that defendant will comply with an Order compelling itto provide said discovery. As such, short
of striking the defendant's answer, in granting the plaintiff s request pursuant to CPLR §3124,
self-executing sanctions must be included in that order to ensure, or at least motivate future
compliance by defendant.
Based on the continual failure of defendant to provide the aforementioned information,
plaintiff respectfully requests defendant's Answer be stricken or in the alternative, defendant be
precluded from offering testimony at the time of trial and for such other and further relief as this
Honorable Court deems just and proper.
WHEREFORE, itis respectfully requested that the within motion be granted in all respects,
and that the Court grant such other and further reliefas this Honorable Court deemsjustandproper.
DATED: New York, New York
April 30, 2019
ANDRE KA
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Preview
FILED: NEW YORK COUNTY CLERK 04/30/2019 04:12 PM INDEX NO. 154432/2018 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 04/30/2019 File No. 30076 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------··-------------··----··------------·-X MARIA ARGUETA CRUZ, AFFIRMATION IN Plaintiff, SUPPORT -against- INDEX #: 154432/2018 173 BROADWAY ASSOCIATES LL.C. and LINDO HON. W. FRANC PERRY, AMANECER GROCERY CORP., III Defendants. ------------------------------------------------------------X ANDREW BOKAR, 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: That I am associated with SUBIN ASSOCIATES, LLP, attorney for the plaintiff herein and am familiar with the facts and circumstances herein, except as to those alleged upon information and belief, and as to those I verily believe them to be true. That I make this affirmation in support of plaintiff's motion for an Order 1) Pursuant to §3126 of the CPLR striking defendant LINDO AMANECER GROCERY CORP 's Answer for failing to respond to the Preliminary Conference Order; 2) Or in the alternative, precluding said defendant from offering testimony at the time of trial;and 3) For such other and further relief as this Honorable Court deems just and proper. A Preliminary Conference was held on September 25, 2018. To date, defendant LINDO AMANECER GROCERY CORP. has failed to provide a response to the Order. (See copy of Preliminary Conference Order annexed hereto as Exhibit "A"). A So-Ordered Stipulation was entered into on February 26, 2019, ordering defendant LINDO AMANECER GROCERY CORP. to respond to plaintiff's good faith letter dated February l 4,2019. However, defendant LINDO AMANECER GROCERY CORP. failed to respond (See copy of Stipulation Order annexed hereto as Exhibit "B"). 1 of 4 FILED: NEW YORK COUNTY CLERK 04/30/2019 04:12 PM INDEX NO. 154432/2018 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 04/30/2019 Circumstanc_es Dictate That No Order or Motion to Compel Is Necessary Prior to Granting Relief Sought by Plaintiff There is no requirement that an order compelling disclosure be obtained prior to seeking sanctions under CPLR §3126, See; Town of East Greenbusts v. As/tland C/tem. Oil Corp., Div. of Ashland Oil, Inc., 99 A.D.2d 604, 471 N.Y.S.2d 709 (3d Dept. 1984). In fact, a leading authority explains that itis "preferable to proceed directly under CPLR 3126 since this eliminates an unnecessary step and is more consistent with the entire CPLR which is designed to lessen calendar congestion by permitting disclosure on notice rather than by order."3A Weinstein, Korn& Miller, New York Civil Practice-CPLR P 3124.03 at p. 31-476.5 (Matthew Bender 1990) (footnote omitted). Where a defendant repeatedly violates court orders and/or discovery demands, striking of the answer is appropriate unless defendants offer a reasonable excuse, The Second Department explains: "The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter of discretion (see Kihl v.Pfeffer, 94 NY2d 118, 122, 722 N.E.2d 55, 700 N.Y.S.2d 87; Zigz v.Wetanson, 67 NY2d 71 1, 490 N.E.2d 852, 499 N.Y.S.2d 933; Morano v. Westchester Paving & Sealing Corp., 7 AD3d 495, 776 N.Y.S.2d 83; Novis v. Benes, 268 AD2d 464, 701 N.Y.S.2d 914). Although striking a pleading is a drastic remedy, itis appropriate where there is a clear showing that the failure to comply with discovery demands was willful or contumacious (see Frias v. Fortini, 240 AD2d 467, 658 N.Y.S.2d 435;.cf. Novis v. Benes, 268 AD2d 464, 701 N.Y.S.2d 914), It can be inferred that a party's conduct is willful and contumacious when it repeatedly fails to comply with discovery demands and court orders compelling disclosure without providing a reasonable excuse for noncompliance (see Mei Yan Zhang v. Santana, 52 AD3d 484, 485, 860 N.Y.S.2d 129; Dinstber v. Geico Ins. Co., 32 AD3d 893, 820 N.Y.S.2d 804; Kroll v. Parkway Plaza Joint Venture, 10 AD3d 633, 634, 781 N.Y.S.2d 613; Ordonez v. Guerra, 295 AD2d 325, 743 N.Y.S.2d 156; Cutolo v. Khalife, 242 AD2d 661, 664 N.Y.S.2d 939; Frias v. Fortini, 240 AD2d 467, 658 N.Y.S.2d 435; Kubacka v. Town of North Hempstead, 240 AD2d 374, 657 N.Y.S.2d 770). If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with imounity (Kihl v. Pfeffer, 94 NY2d at 123). Northfield Ins. Co. v. Model Towinµ & Recovery, 2009 NY Slip Op 4878, 1 (2d Dep't 2009) (emphasis added) (internal quotations omitted). Defendant has not provided a reasonable excuse for the production of ordered documentary evidence. Therefore, defendant's willful and contumacious action can be inferred. 2 of 4 FILED: NEW YORK COUNTY CLERK 04/30/2019 04:12 PM INDEX NO. 154432/2018 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 04/30/2019 conditionall Any Order issued pursuant to CPLR §3124 should also include a sanction pursuant to CPLR §3126 for defendant's failure to appear for the deposition (not subject to adjournment) as ordered by this court as a result of the instant motion. In the event defendants fail to comply with any Order this Court issues pursuant to CPLR §3124, then upon the expiration date for defendants to comply with this Court's directive in the CPLR §3124 Order, then defendant's answer should be automatically and unconditionally stricken. This penalty pursuant to CPLR §3126 should be self-executing in nature such that upon the defendant's failure to comply with this Court's Order resulting from this Motion, the defendants are subject to a stricken answer, without the plaintiff resorting to further motion practice to trigger the penalty pursuant to CPLR §3126. The plaintiff's request for sanctions under CPLR §3126 is appropriate, and some penalty should ensue against defendants under that section. This Court is not limited to the sanctions herein2 specifically requested and is not limited to the sanctions specifically stated within CPLR §3126 and this Court may make such order as is just, which may include imposition of monetary sanctions against defendants. defendants' Where the motion court denied plaintiff s motion to strike answer for failure to comply with discovery, the Appellate Division modified said order. In Figdor v. City of New York, 33 A.D.3d 560, 823 N.Y.S.2d 385 (1st Dept. 2006), the Appellate Division, in so modifying, directed that the answer be struck unless, within 30 days of the service of the order, the defendants paid the plaintiff s attorneys the sum of $10,000. sanction," Imposition of a "conditional is appropriate shortof an Order granting a motion pursuant to CPLR 3 126 in the first instance. See, e.g,PhlHips v. Serbulth,157 A.D.2d 902, 550 N. YS.2d 171 (3dDept. 1990). just." CPLR 3 126 provides "the courtmay make such orders ...as are This includes imposition of monetary sanctions [see,e.g.,Imex Discovery Resources, Inc.v. AllstateHostery Mills,ine., 156 A.D.2d 137, 548 N.YS.2d183 (lstDept. 1989) ; Renford v. Ligurdo, 104 A.D.2d 717, 480 N.YS.2d 655 (4th Dept. 1984)]. 3 of 4 FILED: NEW YORK COUNTY CLERK 04/30/2019 04:12 PM INDEX NO. 154432/2018 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 04/30/2019 Thus, in the instant matter, an order containing a conditional sanction against defendant should issue in conjunction with any Order to compel. Notably, the Court in Figdor (supra) also stated "We take this opportunity to encourage the IAS courts to employ a more proactive approach in such circumstances; upon learning that a party has repeatedly failed to comply with discovery orders, they have an affirmative obligation to compliance" take such additional steps as are necessary to ensure future Figdor v. City of New York, 33 A.D.3d at 561, 823 N.Y S.2d at 386. In the instant matter, the discovery sought is so very crucial and no risk should be taken that defendant will comply with an Order compelling itto provide said discovery. As such, short of striking the defendant's answer, in granting the plaintiff s request pursuant to CPLR §3124, self-executing sanctions must be included in that order to ensure, or at least motivate future compliance by defendant. Based on the continual failure of defendant to provide the aforementioned information, plaintiff respectfully requests defendant's Answer be stricken or in the alternative, defendant be precluded from offering testimony at the time of trial and for such other and further relief as this Honorable Court deems just and proper. WHEREFORE, itis respectfully requested that the within motion be granted in all respects, and that the Court grant such other and further reliefas this Honorable Court deemsjustandproper. DATED: New York, New York April 30, 2019 ANDRE KA 4 of 4