Opinion
Index No. 655492/2019
05-04-2022
MAPLE DRAKE AUSTELL OWNER, LLC, Plaintiff, v. D.F. PRAY, INC., Defendant.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 85, 86, 87 were read on this motion to/for STRIKE PLEADINGS.
This matter arises from a project to redevelop an industrial building located at 47-37 Austell Place, Long Island City, Queens, New York into Class A retail and office space (Complaint, NYSCEF Doc. No. 76 at ¶1). On August 29, 2016, plaintiff engaged defendant to act as the construction manager for the project. During the period following the execution of the construction agreement, defendant allegedly committed multiple acts constituting breach, which ultimately caused a delay of completion of the project (id. ). Plaintiff commenced this action on September 20, 2019, alleging damages in the excess of $26,000,000 (id. ).
Since then, plaintiff and defendant have been engaged in initial discovery discussions, thus far without the benefit of a preliminary conference. On May 28, 2020, defendant served plaintiff with discovery demands (Affirmation of Richard E. Brainsky, NYSCEF Doc. No. 75, 1). On July 28, 2020, plaintiff served written responses and certain objections to defendant's discovery demands (id. ). On July 27, 2020, plaintiff provided numerous documents to Zurich Surety & Financial Claims in connection with plaintiff's surety claim, and plaintiff consented to Zurich providing said documents to defendant (id. ).
By mid-September of that year, there were still some outstanding document production requests, and defendant contacted plaintiff on three separate occasions in September asking for a status of the production. Plaintiff responded by email on September 15, 2020, requesting that the parties "establish a date" for production. Plaintiff then agreed to produce documents on a rolling basis (id. at 2).
On October 19, 2020, plaintiff provided further documents to Zurich in connection with Zurich's supplemental document demands on plaintiff, and consented to Zurich providing said documents to defendant. In addition, on October 29, 2020, plaintiff, through its e-discovery vendor, served defendant with voluminous documents relating to defendant's discovery demands. On November 13, 2020, plaintiff provided further documents to Zurich in connection with Zurich's second supplemental document demand on plaintiff, and plaintiff again consented to Zurich providing said documents to defendant.
Still, defendant was not satisfied with the pace of document production, specifically citing plaintiff's failure to provide intercompany emails and progress reports which had been requested by defendant. (id. at 3). On November 30, 2020, without previously obtaining a leave of the court and without requesting a preliminary conference, defendant filed a motion to strike the complaint pursuant to CPLR § 3126. In the alternative, defendant's motion seeks to compel plaintiff's document production pursuant to CPLR § 3124. Under either result, defendant seeks an award of the fees and costs associated with the motion.
DISCUSSION
I. Motion to Strike a Complaint Pursuant to CPLR § 3126
Defendant's motion to strike a complaint is denied. Defendant argues that the court should strike plaintiff's complaint because plaintiff has repeatedly attempted to delay and thwart defendant's efforts to advance this litigation by failing to completely and timely respond to defendant's discovery demands. Defendant argues that plaintiff's failure to provide intercompany emails and progress reports -- as well as plaintiff's overall delay in producing other requested documents -- constitutes willful and contumacious conduct.
In order to strike a pleading as a sanction for failure to respond fully to discovery pursuant to CPLR § 3126, there must be a showing that the nonresponding party's failure to comply is willful, contumacious or in bad faith ( Reidel v. Ryder TRS, Inc. , 13 AD3d 170 [1st Dep't 2004] ; see also Maiorino v. City of New York , 834 N.Y.S.2d 272, 273 [2d Dept. 2007] [inferring willful and contumacious conduct from repeated failures to comply with court orders directing disclosure]). Without an excusable default, a non-compliant party's answer may be stricken and default judgment entered in favor of the demanding party ( Mears v. Long , 52 N.Y.S.3d 124, 125 [2d Dep't 2017] ; Savin v. Brooklyn Marine Park Dev. Corp. , 878 N.Y.S.2d 178, 180 [2d Dept. 2009] ["The appellants repeatedly failed to comply with court orders directing the production of discovery documents and witnesses for examinations before trial and failed to provide reasonable excuses to justify those failures."]).
Here, there is no demonstrated history of willful failure to comply with plaintiff's discovery obligations, nor are there any prior discovery court orders that have been ignored by plaintiff. In fact, there has not even been a preliminary conference to date. Moreover, defendant's motion fails to establish the pattern of non-compliance necessary to show a "willful" failure to obey its discovery obligations. Plaintiff has provided voluminous documents to defendant to date, and has consented to Zurich providing documents to defendant that plaintiff produced in connection with its surety claim. Plaintiff has also committed to producing additional documents on a rolling basis in advance of any preliminary conference herein.
Additionally, defendant has failed to comply with this court's explicit rules. Specifically, and in relevant parts, Rule 14 of the New York Commercial Division states that:
Discovery disputes are preferred to be resolved through court conference as opposed to motion practice. Counsel must consult with one another in a good faith effort to resolve all disputes about disclosure. See Section 202.7. If counsel are unable to resolve any disclosure dispute in this fashion, counsel for the moving party shall submit a letter to the court not exceeding three single-spaced pages outlining the nature of the dispute and requesting a telephone conference (emphasis added).
New York courts have ruled that discovery motions should be denied if a party fails to adhere to the aforementioned rules ( D'Amour v. Ohrenstein & Brown, LLP , 17 Misc 3d 1130(A), *22 [NY Sup. Ct. N.Y.Cty. 2007] [denying plaintiffs’ discovery motion as they "did not contact the court before making the motion—as required by Rule 14 of (the Commercial Division Rules) ( 22 NYCRR 202.70, Rule 14)—to arrange a conference for the purpose of resolving the issues raised by the motion"]).
Here, defendant has never submitted a letter to the court outlining any of the discovery disputes. In fact, defendant has not even requested a preliminary conference. Accordingly, defendant's application to strike plaintiff's complaint pursuant to CPLR § 3126 is denied both because defendant has failed to establish a willful and contumacious conduct and because of its own failure to follow court rules.
II. Motion To Compel Document Production pursuant to CPLR § 3124
Defendant also seeks an order, pursuant to CPLR § 3124, to compel disclosure from plaintiff. CPLR § 3124 states "[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response." As stated above, there has not yet been a preliminary conference in this matter, and defendant has not even filed a request for a preliminary conference. Accordingly, plaintiff is not in violation of any court-ordered discovery deadlines and, thus, in the court's exercise of its discretion, defendant's motion to compel pursuant to CPLR § 3124 is denied, at this time, without prejudice.
Accordingly, it is
ORDERED that defendant's motion is denied, but that plaintiff shall continue to provide responses to defendant's outstanding demands, as information and documents are identified or otherwise become available; and it is further
ORDERED that counsel shall appear for a virtual preliminary conference on May 10, 2022, at 10:30 AM.