Opinion
Index No. 655414/2018
04-08-2022
Mikhail DVORTSOV, Individually and as Trustee of Mikhail Dvortsov Revocable Trust, Plaintiff, v. Rena LEVY, 100 Bennett Owners Corp., and Levitin & Associates, P.C., Defendants.
Mestechkin Law Group, P.C., Brooklyn, NY (Oleg A. Mestechkin and Nancy Lam of counsel), for plaintiff. Nathan M. Ferst, Esq., New York, NY, for defendant Rena Levy. Abrams Garfinkel Margolis Bergson LLP, New York, NY (Barry G. Margolis and Jonathan D. Hauptman of counsel), for defendant 100 Bennett Owners Corp.
Mestechkin Law Group, P.C., Brooklyn, NY (Oleg A. Mestechkin and Nancy Lam of counsel), for plaintiff.
Nathan M. Ferst, Esq., New York, NY, for defendant Rena Levy.
Abrams Garfinkel Margolis Bergson LLP, New York, NY (Barry G. Margolis and Jonathan D. Hauptman of counsel), for defendant 100 Bennett Owners Corp.
Gerald Lebovits, J.
This action arises out of a failed purchase by plaintiff, Mikhail Dvortsov (Buyer), of an apartment owned by defendant Rena Levy (Seller) in a residential co-operative, defendant 100 Bennett Owners Corp. (Co-Op). The Buyer sued the Seller for the return of his deposit, and also sued the Co-Op, alleging that it intentionally blocked his purchase of the apartment for discriminatory reasons. The Seller counter-claimed against the Buyer for the amount of the deposit and attorney fees; and she cross-claimed against the Co-Op for indemnification.
The parties now move to compel each other to provide discovery. In motion sequence 001, the Co-Op moves under CPLR 3124 to compel, and moves under CPLR 3126 to strike or preclude evidence on the Seller's cross-claims unless the Seller provides discovery, and for attorney fees. In motion sequence 002, the Buyer moves under CPLR 3124 to compel discovery from the Seller. In motion sequence 003, the Seller moves under CPLR 3124 to compel discovery from the Co-Op. Motion sequences 001, 002, and 003 are consolidated here for disposition.
The Buyer also initially sought to compel discovery from the Co-Op; the Buyer later withdrew that branch of his motion after he and the Co-Op resolved their disagreement about the discovery that the Co-Op would provide him.
DISCUSSION
Motion Sequence 001
In moving to compel, the Co-Op argues straightforwardly that the Seller never properly responded to the Co-Op's discovery requests—either to produce documents or to object to the Co-Op's requests for production—notwithstanding multiple conference orders issued by this court and numerous good-faith emails to counsel. In opposition, the Seller makes two arguments: (i) The true dispute in this action lies between the Buyer and the Co-Op, so it is unreasonable to expect the Seller to produce discovery; and (ii) in any event, the Seller already responded to the Co-Op's requests. Neither of these arguments is persuasive.
The Seller's assertion that the true controversy here is only between the Buyer and the Co-Op cannot be reconciled with her own cross-claim for indemnification against the Co-Op. Nor can it be reconciled with the Seller's directing wide-ranging discovery requests to the Co-Op. (Those requests are discussed below in this court's resolution of motion sequence 003.)
This court also disagrees with the Seller's assertion that she already responded to the Co-Op's requests. The only response in the record came in the form of an unsworn email from counsel for the Seller to counsel for the Buyer and counsel for the Co-Op that is styled as a response to the Buyer's discovery requests. (See NYSCEF No. 59 at 1.) That email, after articulating a standard set of general objections, offers a three-paragraph narrative account of the Seller's basic theory of the case. (See id. at 1-2.) This unsworn narrative is not connected to any particular discovery request (whether from the Buyer or the Co-Op); and it is not accompanied by any documents. (See id. ) Such a response is wholly insufficient.
Given the Seller's complete failure to respond properly to the Co-Op's discovery requests, this court concludes not only that the Co-Op's motion to compel should be granted, but also that a further unjustified failure by the Seller to respond and produce documents should result in preclusion sanctions on the request of the Co-Op. The court also concludes that the Seller must pay the Co-Op $500 under CPLR 3126 to offset the costs that the Co-Op had to incur in making this motion.
Motion Sequence 002
The Buyer's argument in support of the motion to compel is similar to the Co-Op's: The Seller never provided proper responses or objections to the Buyer's discovery requests, and has not produced a single document.
In opposition, the Seller makes three arguments: (i) the Seller properly objected to the Buyer's interrogatories and document requests shortly after they were served; (ii) the Seller should not be required to respond further because the true dispute here is between the Buyer and the Co-Op; and (iii) any further required response was supplied by the email from the Seller's counsel to the Buyer's counsel. These arguments are no more persuasive than on motion sequence 001.
The discovery objections served by the Seller on the Buyer are merely boilerplate—and this court does not use that term lightly. With respect to the Buyer's interrogatories, the Seller offered a list of general objections, and then offered the following response to every single interrogatory (NYSCEF No. 88 at 1-7):
"Defendant Levy incorporates by reference each and every general objection noted above, including, without limitation the objections to the defined terms and references. Defendant Levy further objects to this interrogatory because and to the extent it represents an improper fishing expedition, is unduly burdensome, is overly broad, is vexations, and designed to harass and annoy, seeks documents and information that are irrelevant, immaterial and unnecessary to any claim or defense in this action."
This laundry list would not suffice as an objection even to one interrogatory, never mind all of them.
Similarly, with respect to the Buyer's document requests, the Seller gave a long set of general objections, and then offered this response to every request (NYSCEF No. 88 at 9-17):
"Defendant Levy incorporates by reference each and every general objection noted above, including, without limitation the objections to the defined terms and references. Defendant Levy further objects to this request because and to the extent it represents an improper fishing expedition, is unduly burdensome, is overly broad, is vexations, and designed to harass and annoy, seeks documents and information that are irrelevant, immaterial and unnecessary to any claim or defense in this action."
That will not do.
The Seller's other two arguments in opposition to the Buyer's motion to compel paper discovery fail for the reasons already discussed above.
The Buyer also seeks to compel the Seller to appear for a deposition. But the Buyer does not contend that the Seller has refused to appear for a duly noticed deposition. Absent a refusal, there is no basis at this time to compel the Seller to give deposition testimony.
As with the Co-Op, the Seller's failure to provide proper responses and documents to the Buyer has led to unnecessary delay and forced the Buyer to incur additional attorney fees in moving to compel. The Buyer, unlike the Co-Op, did not move for attorney fees as a CPLR 3126 discovery sanction. But the Buyer did include a general prayer for relief in its notice of motion. This court concludes that under these circumstances, it is appropriate under CPLR 3126 to require the Seller to pay $500 to the Buyer, in addition to the $500 that the Seller must pay to the Co-Op.
Motion Sequence 003
The Seller moves to compel the Co-Op to produce documents in response to her discovery requests. The Co-Op contends in response—and the Seller does not dispute—that it has responded to most of the Seller's requests, with four exceptions: request numbers 7, 8, 9, and 13. The Co-Op contends that it should not be required to respond to those requests because they are overbroad and burdensome. This court agrees.
Requests 7 through 9 seek all applications to the Co-Op by prospective purchasers in the building for the past decade, along with all communications about application-related documents sought by the Co-Op from those purchasers. (See NYSCEF No. 39 at 7-8.) The subject of application-related demands made by the Co-Op of prospective purchasers may be relevant to plaintiff's claim that the Co-Op used unreasonable application demands as a pretext for national-origin discrimination in his case (and thus of the Seller's cross-claim against the Co-Op for indemnification). But a blunderbuss request for a decade's worth of co-op applications and their associated communications is overbroad and unduly burdensome. Indeed, it exceeds what the Buyer in this case has agreed to accept in discovery from the Co-Op. (See NYSCEF No. 113 at 1 [email from the Co-Op's counsel to the Buyer's counsel, discussing the Buyer's application-related document requests of the Co-Op].)
Request 13 seeks "[a]ll documents concerning" all the affirmative defenses asserted in the Co-Op's answer. (NYSCEF No. 39 at 8.) This request does not take into account the details of the affirmative defenses for which it seeks documents. The request's broad phrasing calls for production of material shielded by the attorney-client and work-product privileges. That phrasing also sweeps well beyond what would be necessary to enable the Seller to prepare for depositions or to address the Co-Op's likely defenses at summary judgment. And the Seller's motion papers in support of its motion to compel do not articulate any reason why she would need (or be entitled to) such burdensome discovery.
For example, it applies to affirmative defenses based on asserted failures of pleading by the Seller. (See NYSCEF No. 46 at 33, 44). And it seeks documents concerning an affirmative defense that pertained only to the Seller's now-withdrawn third-party action against the Co-Op. (See id. at 47).
The Co-Op must produce to the Seller the same application-related documents it has agreed to produce to the Buyer (as articulated in the communications between counsel for the Co-Op and for the Buyer that the Co-Op filed on this motion, cited above). The Co-Op must also respond to the Seller's demands for witness information. (See NYSCEF Nos. 42-43.) But the Co-Op need not otherwise respond further to the Seller's paper-discovery demands. The Seller's request to compel the Co-Op to produce a witness for deposition is denied without prejudice as premature given the Seller's failure to provide to the Co-Op discovery necessary to enable the Co-Op to prepare fully for a deposition.
Accordingly, for the foregoing reasons, it is
ORDERED that the Co-Op's motion to compel under CPLR 3124 and for discovery sanctions under CPLR 3126 (mot seq 001) is granted to the following extent:
(i) The Seller must, within 45 days of service of notice of entry, respond fully to the Co-Op's discovery requests and produce responsive documents;
(ii) if the Seller does not fully respond and produce documents by this deadline, absent good cause shown she will be precluded on the request of the Co-Op from relying on any responsive-but-not-produce evidence at summary judgment or at trial; and
(iii) the Seller must pay the Co-Op $500 for the costs incurred by the Co-Op in having to make this motion;
and it is further
ORDERED that the Buyer's motion to compel under CPLR 3124 and for such other and further relief as the Court deems just and proper (mot seq 002) is granted to the following extent, and otherwise denied: The Seller must within 45 days of service of notice of entry respond fully to the Buyer's discovery request and produce responsive documents, and must under CPLR 3126 pay the Buyer $500 for the costs incurred by the buyer in having to make this motion; and it is further
ORDERED that the branch of the Seller's motion seeking under CPLR 3124 to compel the Co-Op to provide paper discovery (mot seq 003) is granted only to the extent that the Co-Op must (i) produce the same application-related documents to the Seller as it has agreed to produce to the Buyer; and (ii) respond to the Seller's witness-related discovery demands, and is otherwise denied; and it is further
ORDERED that the branch of the Seller's motion seeking under CPLR 3124 to compel the Co-Op to produce a witness for deposition (mot seq 003) is denied without prejudice; and it is further
ORDERED that the Co-Op shall serve a copy of this order with notice of its entry on all parties.