Opinion
Index 155062/2020
01-10-2022
MICHAEL STALLONE and MICHAEL STALLONE, JR., Plaintiffs, v. LUDLOW 161 REALTY ASSOCIATES, LLC, 161 LUDLOW FOOD, LLC, VICTOR LUKE, MICHAEL AUERBACH, JOHN PIERCE, EDWARD LUKE, and NO FUN BAR & FOOD, Defendants. LUDLOW 161 REALTY ASSOCIATES, LLC, Third-Party Plaintiff, v. 161 LUDLOW FOOD, LLC., Third-Party Defendant.
Unpublished Opinion
PRESENT: HON. JOHN J. KELLEY Justice
DECISION + ORDER ON MOTION
John J. Kelley Judge
The following e-filed documents, listed by NYSCEF document number (Motion 001) 27, 28, 29, 30, 31, 32, 33, 34, 35, 45, 46, 67, 68, 72, 73, 74 were read on this motion to/for COMPEL DISCOVERY .
In this action to recover damages for personal injuries, arising from an alleged demolition and construction accident, the defendant third-party plaintiff, Ludlow 161 Realty Associates, LLC (Realty Associates), moves pursuant to CPLR 3124 to compel the plaintiffs to respond to outstanding discovery demands. The plaintiffs oppose the motion. The motion is denied, and the court directs the parties to appear for a preliminary conference in accordance herewith.
The plaintiffs commenced this action on July 6, 2020, alleging that the defendants were the owners, managing agents, and occupants of commercial premises at which the plaintiff Michael Stallone slipped and fell from a ladder in the course of engaging in construction and demolition activities. They further alleged that the plaintiff Michael Stallone, Jr., was in the zone of danger applicable to his father's fall off the ladder, and witnessed the accident, thus sustaining emotional distress. On September 25, 2020, Realty Associates answered the complaint, denying the substantive allegations of negligence and violation of the Labor Law, and denying knowledge or information sufficient to form a belief as to most of the other allegations. Realty Associates also cross-claimed against 161 Ludlow Food, LLC (Ludlow Food), and its other codefendants for contractual indemnification, common-law indemnification, and contribution. That same date, Realty Associates served numerous discovery demands and a demand for a bill of particulars upon the plaintiffs. On April 19, 2021, Realty Associates commenced a third-party action against Ludlow Food, reiterating the claims for indemnification and contribution that it had already asserted as cross claims against Ludlow Food.
The plaintiffs responded to most of the demands served by Realty Associates, including the demand for a bill of particulars. On June 8, 2021, Realty Associates made the instant motion after mailing good faith letters to the plaintiffs. While the motion was pending, the plaintiffs, on August 12, 2021, served a response to Realty Associates' demands for discovery and inspection, medical records, and authorizations, and informed Realty Associates that they were awaiting receipt of records from Bellevue Hospital, and would forward them to Realty Associates upon receipt.
In the first instance,
"Where [a] motion relates to disclosure or to a bill of particulars, and a preliminary conference has not been held, the court shall notify all parties of a scheduled date to appear for a preliminary conference, which shall be not more than 45 days from the return date of the motion unless the court orders otherwise, and a form of a stipulation and order, prescribed by the Chief Administrator of the Courts, shall be made available which the parties may sign, agreeing to a timetable which shall provide for completion of disclosure within 12 months, and for a resolution of any other issues raised by the motion. If all parties sign the form and return it to the court before the return date of the motion, such form shall be "so ordered" by the court, and the motion shall be deemed withdrawn. If such stipulation is not returned by all parties, the conference shall be held on the assigned date. Issues raised by the motion and not resolved at the conference shall be determined by the court"(22 NYCRR 202.8[f]). Inasmuch as "a preliminary conference has not been held," the motion may be denied on that ground alone, and the court shall schedule a preliminary conference (see Westchester Med. Ctr. v Amoroso, 110 A.D.3d 580, 580 [1st Dept 2013]). Inasmuch as more than 45 days have lapsed since the return date of this motion, the court, in scheduling the preliminary conference, "orders otherwise," and directs the parties to appear for a remote preliminary conference on March 1, 2022 at 11:00 a.m.
In any event, pursuant to the court rules adopted on February 10, 2021,
"[a]bsent exigent circumstances, prior to contacting the court regarding a disclosure dispute, counsel must first consult with one another in a good faith effort to resolve all disputes about disclosure. Such consultation must take place by an in-person or telephonic conference. In the event that a discovery dispute cannot be resolved other than through motion practice, each such discovery motion shall be supported by an affidavit or affirmation from counsel attesting to counsel having conducted an in-person or telephonic conference, setting forth the date and time of such conference, persons participating, and the length of time of the conference"(22 NYCRR 202.20-f[b] [emphasis added]). In an affirmation dated June 8, 2021, Realty Associates' attorney indicated only that his office "served a good faith letter on April 19, 2021 [and] a second good faith letter on May 18, 2021." Counsel provided no proof that he engaged in an in-person or telephonic conference to resolve the discovery disputes, let alone the identities of the persons engaged in the consultation, whether it was an attorney from his office who engaged in such a consultation, or whether the person from his office was able to speak directly with any attorney at defense counsel's office. Nor did Realty Associates' attorney set forth the time or date on which any such consultation occurred or the length of the conference. Realty Associates' attorney thus did not make the attestation of the facts required by the court rule. The motion must, therefore, be denied on that ground as well.
To the extent that the plaintiffs' responses to Realty Associates' demands remain incomplete, that issue will be resolved at the preliminary conference.
Accordingly, it is
ORDERED that the motion of the defendant third-party plaintiff Ludlow 161 Realty Associates, LLC, to compel the plaintiff to respond to outstanding discovery demands is denied; and it is further, ORDERED that the parties shall appear for a remote preliminary conference on March 1, 2022, at 11:00 a.m., via the Microsoft Teams conference application, and the court shall provide the parties with a link permitting them to access that conference.
This constitutes the Decision and Order of the court.