Timothy P. McElduff, Jr., S.

Andrew Maloney, Esq., Maloney Law Group PLLC, Attorneys for Petitioner Burl L. Rogers, One Rockefeller Plaza, Suite 1100, New York, New York 10020

Gregory T. Ambus, Esq., Gregory T. Ambus, P.C., Attorneys for Cross Petitioner/Objectant Bijan Richards, 380 North Broadway STE 300, Jericho, New York 11753

Timothy P. McElduff, Jr., S.

The following papers were considered by the Court upon Cross-Petitioner Bijan Richards' motion for penalties for refusal to comply with orders or to disclose pursuant to CPLR § 3126 :

1. Notice of Motion, Affirmation in Support, together with Exhibits 1-4, filed on March 24, 2021;

2. Affirmation in Opposition, together with Exhibits A-D, filed on April 1, 2021; and

3. Reply Affirmation filed on April 5, 2021.

BACKGROUND

The Decedent, Marietta Bell, died without a will. Petitioner Burl L. Rogers commenced an administration proceeding and sought the issuance of Letters of Administration to himself, alleging that he had standing and an interest to do so as the common law spouse of the Decedent. Cross-Petitioner Bijan Richards answered the petition of Burl L. Rogers and, therein, disputed Mr. Rogers' status as a common law spouse and asserted his own superior standing and interest as the Decedent's only child and sole statutory distributee under EPTL § 4-1.1. Accordingly, Bijan Richards filed a cross-petition seeking the issuance of Letters of Administration to himself as the sole statutory distributee.

The singular issue to be determined in these proceedings is whether or not Petitioner Burl L. Rogers qualifies as the common law spouse of the Decedent.

The first appearance in these proceedings occurred on October 7, 2020, the return date of the initial Order to Show Cause. Being unable to resolve the matter, the Court encouraged counsel to further discuss and investigate a resolution, authorized the parties to proceed with discovery and ordered a future status conference to be held on November 9, 2020.

On October 17, 2020, Cross Petitioner served written discovery demands, which have become the subject of this motion.

Following the status conference of November 9, 2020, the Court issued a Scheduling Order dated November 9, 2020, which, among other things, ordered Petitioner to respond to Cross Petitioner's outstanding discovery demands by November 23, 2020. Additionally, the Court ordered a pre-trial conference to be held on December 2, 2020.

On the pre-trial conference date of December 2, 2020, Petitioner had yet to respond to the document demand portion of Cross Petitioner's discovery demands. The Cross Petitioner's document demands consisted of eleven, distinct and specific requests for written records that might tend to prove or disprove Petitioner's status as Decedent's common law spouse (e.g., joint account records, documents showing the assumption of a surname, documents where the parties referred to each other as spouse or family member, beneficiary designations, etc.). At the Petitioner's request, the Court issued a new Scheduling Order dated December 4, 2020, which ordered Petitioner to respond to Cross Petitioner's discovery demands by December 11, 2020 and ordered a settlement conference with the Court Attorney to be held on January 8, 2021.

On December 10, 2020, Petitioner served his response to Cross Petitioner's discovery demands. As to the document demand portion of the response, Petitioner asserted objections to demand numbers 4 and 5, and failed to respond or otherwise provide requested documentation in response to demand numbers 1-3 and 6-11, other than to state that documents were "To be provided."

On January 8, 2021, the Court Attorney conducted a settlement conference with counsel and parties in attendance. Although certain temporary administration issues necessary to protect the estate were settled, no global settlement was reached. Additionally, the Petitioner's failure to serve a complete response to Cross Petitioner's document demands numbers 1-11 was discussed at the settlement conference. Thereafter, the Court issued a Scheduling Order dated January 8, 2021, which ordered Petitioner to fully and completely respond to Cross Petitioner's discovery demands by January 22, 2021 and specifically warned Petitioner that any failure to do so may be subject to relief under CPLR § 3126.

The Scheduling Order also ordered a continuation date of February 11, 2021 for the settlement conference. Upon the Court's administrative adjournment of the settlement conference to March 12, 2021, the Court further notified counsel that these proceedings were also scheduled for a pre-trial conference on March 17, 2021, in the event that the proceedings did not resolve at the settlement conference.

On March 12, 2021, the Court Attorney conducted the settlement conference with counsel and parties in attendance; however, no final settlement agreement was reached. On that same day, counsel for the Petitioner e-mailed records consisting of Petitioner's bank statements showing the payment of certain bills, a property closing statement and mortgage statements to counsel for the Cross Petitioner. The stated purpose of this disclosure was to show that Petitioner Burl L. Rogers had been paying many of the expenses associated with the home he had shared with the Decedent. However, the records e-mailed by Petitioner were not responsive to Cross Petitioner's document demand numbers 1-11 and not necessarily probative of, or relevant to, the issue of common law spouse status.

On March 17, 2021, the Court held a pre-trial conference and issued a Trial Order dated March 17, which, among other things, set a trial date and a submission schedule for any motion addressing outstanding discovery issues.

The Cross Petitioner now moves for the imposition of sanctions under each ground of CPLR § 3126, alternatively, as well as a monetary sanction for fees and costs in the amount of $3,500.00.

ANALYSIS

CPLR § 3126 provides as follows:

If any party ... refuses to obey an order for disclosure or wilfully 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:

1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or

2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or

3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.

The remedy of preclusion (i.e., CPLR § 3126[2] ) is drastic, especially where it can have the effect of preventing a party from asserting its claim, and is reserved for those instances where the offending party's lack of cooperation with disclosure was willful and contumacious. BDS Copy Inks, Inc. v. Int'l Paper , 123 AD3d 1255, 1256—57 (3d Dept. 2014).

Significantly, however, the willful and contumacious character of a party's failure to respond to discovery demands can be inferred from repeated failure to comply with the court's orders and inadequate excuses for the failure to comply. See, e.g., Moog v. City of New York , 30 AD3d 490, 491 (2d Dept. 2006) ; Cano v. BLF Realty Holding Corp. , 243 AD2d 390, 390 (1st Dept. 1997).

Partial compliance or limited cooperation with disclosure does not necessarily preclude a finding of willful and contumacious behavior. BDS Copy Inks, Inc. v. Int'l Paper , 123 AD3d 1255, 1257 (3d Dept. 2014).

Thus, for example, a trial court properly exercised its discretion in precluding a defendant from using a statement by plaintiff contained in defendant's in-house accident report as evidence-in-chief since defendant withheld the accident report until the time of jury selection despite plaintiff's long-standing specific demands for such party statements, and in violation of a court order pursuant to which discovery was to have been completed many months before. Mingo v. Manhattan & Bronx Surface Transit Operating Auth. , 302 AD2d 274 (1st Dept. 2003) ; see also , BDS Copy Inks, Inc. v. Int'l Paper , 123 AD3d 1255, 1257 (3d Dept. 2014) (holding that the trial court did not abuse it discretion in striking the plaintiff's complaint for failure to adequately respond to document demands where the court met with counsel at least six times and issued at least two orders extending plaintiffs' time to comply with their discovery obligations).

Additionally, a monetary sanction, including costs and counsel fees, may be imposed under the statutory language in CPLR § 3126, which permits the court to "make such orders with regard to [a] failure or refusal [to disclose information which the court finds ought to have been disclosed] as are just ." See Maxim, Inc. v. Feifer , 161 AD3d 551, 554 (1st Dept. 2018) ; see also, Lucas v. Stam, 147 AD3d 921 (2d Dept. 2017) ; see, e.g., Miller v. City of New York , 15 Misc 3d 1127(A) (Sup. Ct., Bronx Co., 2007) (trial court granted motion to strike the answer and additionally imposed the monetary sanction of $2,500.00 where a pattern of non-compliance, consisting of failure to comply with four discovery scheduling orders, delayed the action and caused unnecessary motion practice).

Here, Petitioner failed to respond completely, fully and responsively to Cross Petitioner's document demands. The proper response to a document demand is to (1) produce the document that has been demanded, (2) state the reason why the document cannot be produced [e.g., it does not exist, etc.] or (3) state a proper objection to the document's production. Here, the Petitioner responded by stating "To be provided" in response to document demand numbers 1-3 and 6-11. Such a response to a document demand is neither proper nor sufficient. In response to document demand number 4 ("Please furnish any credit card account in the names of both you and Marietta Bell"), the Petitioner responded by objecting on the ground of relevance. This objection is overruled since, in a common law spouse case, it is relevant to inquire as to how the couple held themselves out to the world in the manner of both finances and title or name. In response to document demand number 5 ("Please furnish any documents showing that Marietta Bell ever assumed your surname of Rogers to claim that she was married"), the Petitioner responded as follows: "Objection. Ambiguous inquiry that calls for speculation and decedent's state of mind." This objection is overruled because it is neither ambiguous nor calling for speculation on the decedent's state of mind. Instead, the demand simply calls for the production of any document showing that Marietta Bell had been referred to as Marietta Rogers or had indicated that she was married to Mr. Rogers.

Petitioner's failure to responsively and completely respond to Cross Petitioner's document demands is inferred to be willful and contumacious for the purposes of CPLR § 3126 due to Petitioner's failure to sufficiently respond despite three court orders to do so (over the course of three months) and an additional ten-week period between the last court-ordered deadline and Cross Petitioner's submission of the instant discovery motion. See Moog, supra; Cano, supra. Furthermore, Petitioner has made no attempt to explain his ultimate failure to respond to the document demands. Finally, Petitioner's disclosure of other potentially relevant documents, at best, is partial cooperation in these proceedings, but not a substitute for responsive and complete answers to the actual document demands themselves. See BDS Copy Inks, Inc., supra.

As mentioned at the outset, Cross Petitioner's document demands merely sought the production of documentary records that might tend to prove or disprove Petitioner's status as Decedent's common law spouse. If such documents existed, the Cross Petitioner, having demand them, was entitled to see them. If such documents did not exist, the Cross Petitioner was entitled to know that, as well. The lack of responsive and complete answers to Cross Petitioner's demands has prejudiced Cross Petitioner's preparation for trial, prolonged these proceedings and has resulted in the avoidable expense and delay of the instant discovery motion.

Based upon the circumstances presented here, the proper CPLR § 3126 sanctions are preclusion of and any all documentary records that are responsive to Cross Petitioner's document demands and the payment of monetary sanctions by Petitioner to the Cross Petitioner in the amount of $3,500.00.

CONCLUSION

For the foregoing reasons, it is hereby

ORDERED that Cross Petitioner's motion is granted, subject to the qualifications below; and it is further

ORDERED that Petitioner Burl L. Rogers is hereby precluded pursuant to CPLR § 3126(2) from offering at trial, or by motion, any and all documentary records that are responsive to Cross Petitioner's document demands in these proceedings; and it is further

ORDERED that Cross Petitioner Bijan Richards is hereby awarded monetary sanctions pursuant to CPLR § 3126 in the amount of $3,500.00 and shall recover said amount as against Petitioner Burl L. Rogers herein, and that Petitioner Burl L. Rogers shall pay Cross Petitioner Bijan Richards said amount in good and sufficient funds within 30 days of the date of this Decision and Order; and it is further

ORDERED that such other or further relief, to the extent requested herein, is denied.