Opinion
Index 655576/2017
01-21-2022
ANATOLE SHAGALOV, NATURE MORTE LLC, Plaintiffs, v. ASHER EDELMAN, ARTEMUS USA LLC, EDELMAN ARTS INC., JOHN DOE 1-20, Defendants. Motion Seq. No. 023, 025
Unpublished Opinion
MOTION DATE 11/23/2021
DECISION+ ORDER ON MOTION
JOEL M.COHEN, Judge
The following e-filed documents, listed by NYSCEF document number (Motion 023) 715, 716, 717, 718, 719, 720, 737, 738, 744, 772, 773 were read on this motion for DEFAULT JUDGMENT & PREFERENCE ON INQUEST The following e-filed documents, listed by NYSCEF document number (Motion 025) 758, 759, 760, 761, 774, 775, 777, 778, 779, 780, 781, 782, 783, 785, 786, 787, 788, 789, 790, 791, 792, 793, 794, 795, 796 were read on this motion for RENEWAL & REARGUMENT
Upon the foregoing documents, and for the reasons stated on the record following oral argument on January 18, 2022, it is
ORDERED that Defendants'/Counterclaim Plaintiffs' motion (i) for leave to enter a default judgment for the relief demanded in its counterclaims under CPLR 3215 [a]; (ii) appointing a referee for an inquest to determine damages; (iii) directing the Clerk to enter judgment upon the result of the inquest, without further application; and (iv) granting a preference on the inquest pursuant to CPLR 3403 [a][4] (collectively, Motion Sequence No. 023) is GRANTED ; it is further
Plaintiffs impassioned plea during oral argument for another chance to remedy the most recent of his many discovery defaults, citing missteps by prior counsel, did give some pause. The Court does not relish imposing sanctions and does so very rarely. However, a review of the long and frustrating record that gave rise to the sanctions decision that is the subject of this motion (summarized generally at NYSCEF 670 39:13- 47:4 and in greater detail in Defendants' numerous briefs on this topic during the course of this litigation), including Plaintiffs own misleading testimony under oath during an earlier hearing on discovery failings, makes plain that Plaintiffs belated offer to cure the most recent discovery lapse is unavailing. The bottom line is that this case has been significantly delayed and sidetracked, on numerous occasions and at considerable expense, owing largely to Plaintiffs dilatory conduct and disregard for Court orders. This is that rare case in which, in this Court's view, a substantial sanction was warranted.
ORDERED that Plaintiffs' motion for leave to renew and reargue (i) Motion Seq. No. 021 (which was itself a motion to renew and reargue a prior motion), and (ii) Plaintiffs' Counsel's request for sanctions and damages against Defense Counsel for a purported improper filing of a CPLR 5222 notice of restraint (collectively, Motion Sequence No. 025) is DENIED; it is further
ORDERED that Defendants/Counterclaim Plaintiffs are hereby directed to proceed to an Inquest before a Special Referee who shall hear and make a recommendation to the Court as to Defendants'/Counterclaim Plaintiffs' damages, if any; it is further
ORDERED that the powers of the JHO/Special Referee to determine shall not be limited further than as set forth in the CPLR; it is further
ORDERED that this matter is hereby referred to the Special Referee Clerk (Room 119 M, 646-386-3028 or spref@courts.state.ny.us) for placement at the earliest possible date upon the calendar of the Special Referees Part (Part SRP), which, in accordance with the Rules of that Part (which are posted on the website of this Court at www.nycourts.gov/supctmanh at the "Local Rules" link), shall assign this matter to an available Special Referee to determine as specified above; and it is further
ORDERED that Petitioner-Plaintiffs counsel shall serve a copy of this order with notice of entry on Respondents-Defendants within five days and that counsel for Petitioner-Plaintiff shall, after thirty days from service of those papers, submit to the Special Referee Clerk by fax (212-401-9186) or email an Information Sheet (which can be accessed at http://www.nycourts.gov/courts/ljd/supctmanh/refpart-infosheet-10-09.pdf) containing all the information called for therein and that, as soon as practical thereafter, the Special Referee Clerk shall advise counsel for the parties of the date fixed for the appearance of the matter upon the calendar of the Special Referees Part; it is further
ORDERED that the hearing will be conducted in the same manner as a trial before a Justice without a jury (CPLR 4318) (the proceeding will be recorded by a court reporter, the rules of evidence apply, etc.) and that the parties shall appear for the reference hearing, including with all such witnesses and evidence as they may seek to present, and shall be ready to proceed, on the date first fixed by the Special Referee Clerk subject only to any adjournment that may be authorized by the Special Referee's Part in accordance with the Rules of that Part; it is further
ORDERED that, except as otherwise directed by the assigned JHO/Special Referee for good cause shown, the trial of the issue specified above shall proceed from day to day until completion; it is further
ORDERED that Defendants/Counterclaim Plaintiffs' motion under CPLR 3403 [a][4] is granted, and the Special Referee shall grant Defendants/Counterclaim Plaintiffs a preference in the priority of hearing the Inquest; and it is further
ORDERED that the parties upload a copy of the transcript of the proceedings to NYSCEF upon receipt.
This constitutes the Decision and Order of the Court.