Opinion
Index No. 657551/2017 Motion Seq. No. 012
06-26-2023
TOWN AND COUNTRY ADULT LIVING, INC., THE WESTCHESTER RESIDENCE AND CLUB, LLC, ROBERT MISHKIN, Plaintiffs, v. THE HEARTH AT MOUNT KISCO, LLC. FORTUS MOUNT KISCO, LLC. FORTUS COMPANIES, LLC, HEARTH SENIOR CARE MOUNT KISCO, LLC, ADAM PROBST, CHRISTIAN SEXTON, CARL GUY, MAYNARD FAHS, DEBBIE PROBST Defendants.
Unpublished Opinion
MOTION DATE 03/23/2023
DECISION+ ORDER ON MOTION
HON. JOEL M. COHEN JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 012) 437, 438,439, 440, 441,442, 443, 444, 445, 446, 447, 448, 449, 450, 451, 452, 453, 454, 455, 456, 457, 458, 459, 460 were read on this motion to COMPEL DISCOVERY
Defendants' motion to compel discovery is granted. Plaintiff Robert Mishkin ("Mishkin") shall, within thirty (30) days of this decision and order, be made available for a deposition and produce any responsive non-privileged documents that have not already been produced.
The Notice of Motion seeks to compel the deposition and documents. The moving brief seeks to set the location of the deposition at the New York County Courthouse as well as rulings on hypothetical objections. The Court's decision is limited to the relief sought in the Notice of Motion. The Court expects counsel to be able to resolve the question of where to take the deposition without Court intervention, and will not resolve disputes with respect to objections until a record has been made.
A. Background
Defendants served a notice of deposition and request for documents on Mr. Mishkin on October 24, 2022 (NYSCEF 441). As discussed during the December 20, 2022 hearing, Mr. Mishkin's deposition was not completed while certain discovery disputes were pending (NYSCEF 433 [Transcript at 47-48]). The Court resolved the disputes and directed the parties to complete depositions promptly (Tr. at 58-59). The Court directed that no further Rule 14 letters be submitted and that the parties instead file motions to compel discovery if deemed necessary (Tr. at 60).
On January 31, 2023, Defendants moved to compel Mr. Mishkin's deposition (NYSCEF 420). On March 7, 2023, the motion was withdrawn because the parties reached an agreement to conduct Mr. Mishkin's deposition that same day (NYSCEF 434-435). However, the veiy next day, on March 8, 2023, counsel for Mr. Mishkin wrote that while he and Mr. Mishkin appeared on March 7, 2023 for deposition, counsel for Defendants failed to appear (NYSCEF 436). According to Mr. Mishkin's counsel, Defendants' counsel improperly refused to take the deposition because (1) Mr. Mishkin claimed to not possess any documents beyond what was exchanged in discovery and (2) counsel for Mr. Mishkin advised that he anticipated interposing an objection to questions pertaining to a certain time period.
On March 23, 2023, Defendants filed the instant motion to compel Mr. Mishkin's deposition (NYSCEF 437). No opposition was filed, and the motion was marked submitted on April 14, 2023 (see NYSCEF Docket).
B. Mr. Mishkin Shall Be Made Available For Deposition
Mr. Mishkin's deposition is clearly warranted, and Mr. Mishkin does not object to being deposed. The Court cannot determine, and is not particularly interested in, which party is responsible for the cancellation of the last deposition. But it should not happen again. Mr. Mishkin's deposition shall be held within thirty (30) days. Mr. Mishkin's counsel shall promptly propose dates for the deposition.
Mr. Mishkin shall produce any responsive non-privileged documents that have not been produced to date before or at the deposition pursuant to CPLR 3111. Defendants may inquire at the deposition about the search for and production of responsive documents to probe whether production is complete (Penn Palace Operating, Inc. v Two Penn Plaza Assoc., 215 A.D.2d 231, 231 [1st Dept 1995]), but the deposition should not be cancelled or adjourned on that basis. Nor should the deposition be cancelled based on objections, which may be resolved in the ordinary course. Any objections at the deposition shall be made in accordance with CPLR 3115 and 22 NYCRR 221.1 (Freidman v Fayenson, 41 Mise 3d 1236(A) [NY Sup 2013], affd sub nom. Freidman v Yakov, 138 A.D.3d 554 [1st Dept 2016]).
C. Discovery Is Closed
The July 30, 2019 Preliminary Conference Order (NYSCEF 130) provided for discovery to close on February 14, 2020. On December 27, 2019, the Court extended the time to complete discovery to April 17, 2020 (NYSCEF 148). On July 2, 2020 - during the pandemic -Defendants indicated their intention to move for summary judgment (NYSCEF 158). On July 8, 2020, Plaintiffs argued that discovery was incomplete, sought to stay summary judgment motion practice and requested a Rule 14 conference. The Court declined to stay summary judgment motions but cautioned that "Defendants are advised to assume that multiple summary judgment motions will not be allowed" (NYSCEF 166).
On February 17, 2021, the Court granted Plaintiffs leave to make a motion to strike Defendants' Answer for failure to produce discovery (NYSCEF 236). On February 22, 2021,
Defendants' motion for summary judgment was granted to the limited extent that the eighth and ninth causes of action were dismissed (NYSCEF 237). Thereafter, several discovery motions were fried and resolved on December 20, 2022 (NYCEF 433 [Transcript], 415-418).
During the December 20, 2022 conference, the parties discussed the issues raised in numerous Rule 14 conferences held with the Court's staff (Tr. 6-7, 23, 27-28, 35-37, 43, 58). In response to the Court's inquiry about the discovery schedule, it was revealed that the parties could not even agree to submit a proposed discovery schedule as suggested by the Court's Principal Law Clerk (Tr. 58-59). Accordingly, as stated above, the Court excused further-compliance with Rule 14.
The only motions that have been filed in the sixth months since the December 20, 2022 conference concern Mr. Mishkin's deposition. That issue has now been resolved. Thus, there are no remaining issues in discovery and the Court shall set a note of issue deadline and summary judgment deadline.
* * * * Accordingly, it is
ORDERED that Defendant's motion to compel Mr. Mishkin's deposition is GRANTED. Mr. Mishkin shall be made available for deposition and produce any additional responsive non-privileged documents within thirty (30) days of this decision and order as specified above; it is further
ORDERED that the Note of Issue shall be filed on or by August 18, 2023; it is further ORDERED that the deadline to move for summary judgment is September 18, 2023; and it is further
ORDERED that the parties submit a status update letter to the Court on or by September 1, 2023, including their preference for a Mandatory Settlement Conference as required by Rule 30(b) of the Commercial Division Rules; and it is further
This constitutes the decision and order of the Court.