Opinion
Index No. 654456/2021
07-17-2023
30 Macombs Place Housing Development Fund Corporation, Plaintiff, v. Samuel G. Elchert, Defendant.
Kane Kessler, P.C., New York, NY (S. Reid Kahn, David A. Gold, and John Reklaitis of counsel), for plaintiff. Smith, Buss & Jacobs, LLP, Yonkers, NY (Ryan P. Houck of counsel), for defendant.
Unpublished Opinion
Kane Kessler, P.C., New York, NY (S. Reid Kahn, David A. Gold, and John Reklaitis of counsel), for plaintiff.
Smith, Buss & Jacobs, LLP, Yonkers, NY (Ryan P. Houck of counsel), for defendant.
Gerald Lebovits, J.
Plaintiff 30 Macombs Place Housing Development Fund Corporation is the owner of an apartment building at 30 Macombs Place in Manhattan. (NYSCEF No. 7 at 2.) Defendant Samuel G. Elchert is a shareholder and lessee of a unit in the apartment. (Id.) Plaintiff and defendant entered into a lease agreement in May 2018. (NYSCEF No. 7 at 2.) Plaintiff commenced this action in July 2021, claiming that defendant breached the lease by engaging in unauthorized renovations to defendant's apartment. (See NYSCEF No. 7.)
Defendant now moves under 50 USC § 3932 to stay this action, including discovery, until 30 days after defendant returns from active duty in Somalia (estimated to be by the end of September 2023). (NYSCEF No. 18 at 1.) Defendant also moves, pursuant to CPLR 2004, to extend his time to respond to the discovery demands served by plaintiff, including time to make objections to such demands, for thirty days after defendant returns to the United States. (Id.)
Plaintiff cross-moves, pursuant to CPLR 3126, to strike the answer and dismiss the counterclaims as a result of defendant's "willful and contumacious failure to provide discovery," and to award attorney fees. (NYSCEF No. 29 at 1.)
Defendant's motion to stay is granted. Plaintiff's cross-motion to strike is denied.
DISCUSSION
I. Defendant's Motion to Stay
Defendant moves under 50 U.S.C. § 3932 to stay this action. Defendant argues that he has been on active duty in Somalia since November 2022, and his duties as officer in charge of a surgical team in Somalia materially affect his ability to appear in this action or participate in discovery. (NYSCEF No. 19 at 1.) Defendant seeks a stay of the proceedings and ability to respond to discovery demands until thirty days after his return to the United States, estimated to be in September 2023. (Id. at 2.) Additionally, defendant claims he has complied with the requirements of an application to stay under § 3923 of the SCRA, and that the requested stay will not materially prejudice plaintiff. (Id.)
50 U.S.C. § 3932 (b) states that the court may stay an action for a period not less than ninety days, upon application by a servicemember plaintiff. The application must set forth "facts stating the manner in which current military duty requirements materially affect the servicemember's ability to appear and stating a date when the servicemember will be available to appear." (50 USC § 3932 [b] [2] [A].) The application must also provide a representation from "from the servicemember's commanding officer stating that the servicemember's current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter." (Id. § 3932 [b] [2] [B].)
Defendant submits a letter explaining that he is the officer in charge of a surgical team of 10 people, the team provides damage control resuscitation and surgery for injured service members, and that he is always on call to provide services. (NYSCEF No. 20.) Defendant also states that he must attend daily meetings related to operations of serving over 300 other service members. (Id.) Defendant's commanding officer submitted a memorandum confirming that defendant is unable to appear for any civil proceedings while supporting his camp in the Horn of Africa. (NYSCEF No. 21.) Based on these submitted statements, defendant would be materially prejudiced if ordered to appear in person for this action. To account for defendant's estimated date of return, the action is stayed until at least November 3, 2023.
Given this court's disposition of defendant's request for a stay under 50 USC § 3932, the court does not reach defendant's alternative request for relief under CPLR 2004.
In his reply papers, defendant also requests sanctions against plaintiff for plaintiff's allegedly frivolous request to recover its costs in opposing defendant's motion. (See NYSCEF No. 46 at ¶¶ 32-34.) However, plaintiff's request for costs does "not rise to the level of being sanctionably frivolous." (Jarrett v Bank of Am., Corp., 2023 NY Slip Op 50417[U], *7 [Sup Ct, New York County 2023].) Therefore, defendant's request is denied.
II. Plaintiff's Cross-Motion to Strike
Plaintiff cross-moves pursuant to CPLR 3126 to strike the answer and dismiss the counterclaims, arguing that defendant was willful and contumacious in its failure to provide discovery. (NYSCEF No. 29 at 1.) Moreover, plaintiff requests sanctions be imposed on defendant for failing to appear at court ordered mediation. (NYSCEF No. 30 at 16.) Alternatively, plaintiff moves pursuant to CPLR 3124 and CPLR 3126 to conditionally strike the answer and counterclaims, and compel defendant to provide discovery. (NYSCEF No. 29 at 1.) Plaintiff also requests an award of attorney fees. (Id.)
Defendant opposes the cross-motion, arguing that he did not willfully and contumaciously avoid court ordered mediation because he was engaged in other litigation at the time. (See NYSCEF No. 47.) Defendant further argues that plaintiff's affirmation in good faith. (NYSCEF No. 45) does not comply with Uniform Rule § 202.20-f (b) because plaintiff did not set up a conference to attempt to resolve disclosure disputes, plaintiff only sent a deficiency letter (NYSCEF No. 37) and an email (NYSCEF No. 42.) (See NYSCEF No. 46 at ¶¶ 22-24.) Defendant claims that even if plaintiff's motion to strike was supported by an affirmation that complied with the Uniform Rule, defendant did not willfully or contumaciously avoid providing disclosure requirements, and therefore "violated no discovery orders of the court." (NYSCEF No. 46 at ¶ 27.) Defendant also argues that plaintiff's request for sanctions should be denied because defendant did not avoid mediation in bad faith, nor did plaintiff adequately demonstrate that defendant's failure to comply with less than three court orders rises to a level of misconduct that warrants sanctions. (See NYSCEF No. 46.)
The court may strike out "pleadings or parts thereof," or may "dismiss[] the action or any part thereof" against a party that "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." (CPLR 3126[3].) Plaintiff cites multiple cases in support of its cross-motion to strike that all involve multiple, repeated failures to comply with court orders. (See NYSCEF No. 30.) However, when a reasonable excuse is given, failure to comply with discovery requests may be excused. (See Garcia v City of New York, 99 A.D.3d 491, 493 [1st Dept 2012].)
During the time of this suit, defendant was engaged in a second litigation with plaintiff for a non-payment proceeding. (See NYSCEF No. 47.) Defendant argues that plaintiff was aware of the parties' attempt to settle that action during the winter and spring of 2022, and that defendant reasonably believed that the burden of responding to discovery demands for this action was unnecessary during that time. (See id. at ¶ 8-9.) Moreover, defendant argues that the second time plaintiff requested discovery was in May 2023 while plaintiff was deployed in Somalia for five months. (See id. at ¶ 10.) Accordingly, defendant provides reasonable excuses for not complying with the two discovery requests. The motion to strike the answer under CPLR 3126 is denied, and no sanctions are imposed on defendant for failing to comply with these discovery requests.
Plaintiff also requests sanctions be imposed on defendant for failing to appear to court ordered mediation. (NYSCEF No. 30 at 16.) As demonstrated above, defendant could not appear because of his deployment to Somalia during the time of the mediation in May 2023. Accordingly, defendant offers a reasonable excuse for pushing back the mediation, and defendant's conduct was not willful, nor contumacious. (See, e.g., Aegis SMB Fund II, L.P. v Rosenfeld, 189 A.D.2d 472, 473 [1st Dept 2020] [finding that the defendant did not act willfully, nor with a pattern of dilatory behavior in ruling not to vacate the judgment in a failure to appear for mediation].) Accordingly, no sanctions will be imposed on defendant for failing to appear to court ordered mediation.
Accordingly, it is
ORDERED that defendant's motion to stay this action is granted, and the action is stayed until November 3, 2023, without prejudice to a further stay application made by motion on notice supported by appropriate documentation; and it is further
ORDERED that plaintiff's cross-motion to strike and for an award of attorney fees is denied; and it is further
ORDERED that defendant serve a copy of this order with notice of its entry on plaintiff and on the office of the General Clerk, which shall update its records accordingly.