Opinion
No. 602848/07.
2010-08-24
George BARDIS, Plaintiff, v. 14TH STREET GYM, LLC, Defendant.
Kelly L. Murtha of Cascione, Purcigliotti & Galluzzi P.C., for Plaintiff. No Appearance by Defendant.
Kelly L. Murtha of Cascione, Purcigliotti & Galluzzi P.C., for Plaintiff. No Appearance by Defendant.
EILEEN A. RAKOWER, J.
George Bardis (“Plaintiff”) brings this action against defendant 14th Street Gym, LLC (“Defendant”) seeking damages based upon Defendant's alleged breach of an employment agreement between Plaintiff and Defendant. Plaintiff also alleges causes of action for unjust enrichment and wrongful termination.
According to the complaint, Plaintiff, an experienced sports and fitness consultant, entered into an agreement with Defendant to help design and build a new fitness center at 244 East 14th Street in Manhattan, known as Citifitness, and to manage the day-to-day operations of the center thereafter. This agreement was memorialized in an Employment Contract (“the contract”), which was signed by the parties on November 27, 2006. A copy of the contract is annexed as an exhibit to Plaintiff's complaint, which is annexed as an exhibit to Plaintiff's motion; a separate copy is independently annexed as an exhibit to the motion as well.
The contract between Plaintiff and Defendant provided that Plaintiff was hired for a period of three years from the date of signing. For the first year of Plaintiff's employment, he would receive a base salary of $55,000.00, plus commissions and bonuses. In addition, Defendant guaranteed that Plaintiff would receive a minimum of $80,000.00, inclusive of base salary plus commissions and bonuses, during his first year of employment. Thereafter, additional bonuses or increases in salary would be negotiated at a later date. Under the contract, Plaintiff was to be paid either weekly or bi-weekly.
The contract further provided that the agreement between the parties could be cancelled by either party on 15 days written notice. However, Section 13(B) of the contract provided that in the event that the contract should be terminated for anything other than “cause”, Plaintiff would be entitled to receive a flat commission of $25,000 per year for the second and third years of the contract.
According to the complaint, on April 6, 2007, Plaintiff met with four of the principals of Defendant: Anthony Gaudio, Michael Delprete, Mark Kraus and Joel Weitzman. At this meeting, Plaintiff was told that customers had not signed up for gym memberships in quantities hoped for, and that Plaintiff's employment was no longer desired. Plaintiff was specifically told at this meeting that he was being terminated solely due to the fact that Defendant lacked the funds to continue paying him. Plaintiff further and affirmatively avers in his complaint that no cause existed for his termination, and that Defendant never provided 15 days written notice of his termination. Plaintiff's final day of employment with Defendant was April 13, 2007. Plaintiff commenced this action on August 23, 2007. Plaintiff seeks judgment in the amount of $93,075.00. Of this sum, $43,075.00 represents payment for the remainder of his guaranteed first-year salary of $80,000.00 (Plaintiff states in his complaint that he drew a weekly salary during the 24 weeks that he was employed by Defendant); while $50,000.00 represents compensation for the second and third years of the contract, pursuant to Section 13(B) of the contract.
Presently before the court is a Plaintiff's motion for an order striking Defendant's answer pursuant to CPLR § 3126 for Defendant's alleged failure to comply with its discovery obligations. Plaintiff submits an affirmation in support of his motion. Defendant has failed to submit responsive papers.
A preliminary conference was held on April 4, 2008, wherein among other things, the parties were directed to produce authorizations for their 2006 and 2007 tax returns.
On August 8, 2008, the parties appeared for a compliance conference, wherein depositions of the parties were scheduled for October 15, 2008, and responses to outstanding discovery were to be provided by September 15, 2008.
On September 12, 2008 and September 15, 2008, Plaintiff served a notice for discovery and inspection and a demand for a verified bill of particulars, respectively.
Plaintiff states that on October 14, 2008, the day prior to scheduled depositions, counsel's attempts to confirm Defendants' appearance at the depositions were unsuccessful, and that accordingly, depositions had to be postponed.
The parties appeared for another compliance conference on October 24, 2008. There, the parties entered into a compliance conference order which provided that Defendant was to respond to Plaintiff's discovery demands and fully comply with the PC order by December 31, 2008; and that the parties were to appear for depositions on January 29, 2009.
On December 17, 2008, Defendant provided a response to the October 24, 2008 compliance conference order, wherein Defendant denied having any responsive records whatsoever, including financial records, or records of payments made to Plaintiff under the contract.
Plaintiff states that once again, the depositions scheduled for January 29, 2009 were cancelled, as counsel sought to confirm Defendant's appearance, but was unsuccessful, notwithstanding numerous attempts to contact opposing counsel.
The next day, on January 30, 2009, Defendant failed to appear for a scheduled compliance conference.
The parties next appeared for a compliance conference on February 20, 2009, wherein Defendant's covering counsel advised that defense counsel was hospitalized following surgery. Based on these developments, the court issued a compliance conference order providing Defendant with 75 days to provide all outstanding discovery.
On May 26, 2009, after the passage of over 90 days from the February 20, 2009 compliance conference order, Plaintiff's counsel sent a letter to Defendant's counsel seeking production of outstanding discovery.
Defendant's attorney moved to be relieved as counsel by order to show cause the following day, stating that “Defendant's failure to cooperate with this office in the defense of this matter has made it impossible for me to continue my representation of same....” This motion was granted by the court's order (per Justice Walter B. Tolub) dated June 23, 2009, and proceedings were stayed for 30 days in order for Defendant to retain new counsel.
Another compliance conference was scheduled for August 7, 2009. However, while Plaintiff appeared at the conference, Defendant did not. Indeed, Defendant had apparently failed to retain new counsel, there being no notice of appearance by an incoming attorney.
Once again, on September 25, 2009, Defendant failed to appear for the rescheduled conference.
Plaintiff now moves to strike Defendant's answer, citing Defendant's consistent failure to appear for conferences and depositions, and for Defendant's failure “to produce a single document that plaintiff has demanded.”
CPLR § 3216 provides, in pertinent part:
“If any party ... refuses to obey an order for disclosure ... the court may make such orders with regard to the failure or refusal as are just, among them:
(3)an order striking out pleadings or parts thereof ...
Pursuant to CPLR § 3126, a court may impose sanctions when a party willfully fails to disclose information which the court finds ought to have been disclosed. The sanction of striking a party's answer is warranted when a party repeatedly and persistently fails to comply with several disclosure orders issued by the court. (Yoon v. Costello, 29 AD3d 407[1st Dept.2006] ). A court may strike a party's answer only when “a clear showing that the failure to comply is willful, contumacious or in bad faith” is made by the moving party. Repeated non-compliance with court orders gives rise to an inference of willful and contumacious conduct. (Goldstein v. CIBC World Markets Corp., 30 AD3d 217 [1st Dept.2006] ). The burden then shifts to the non-moving party to provide a reasonable excuse for its non-compliance. (Reidel v. Ryder TRS, Inc., 13 AD3d 170 [1st Dept.2004] ) (where the court issued a conditional order striking the defendant's answer after it found that defendant's failure to appear at three court-ordered depositions was willful and defendant failed to offer a reasonable excuse for its non-compliance).
Here, through Defendant's numerous and repeated failures to comply with its court-ordered discovery obligations, as recounted at length above, Defendant has exhibited “precisely the sort of dilatory and obstructive, and thus contumacious, conduct warranting the striking of [its] answer[ ]” ( Reidel at 171). Moreover, in failing even to submit opposition to Plaintiff's motion to strike, Defendant has rather convincingly evinced its sheer refusal to appear and defend itself in this lawsuit. Accordingly, the severe sanction of striking Defendant's answer is wholly appropriate.
Finally, since the issue of wrongful termination is resolved in Plaintiff's favor by virtue of the striking of Defendant's answer, the court finds that Plaintiff has demonstrated his entitlement to judgment in the amount of $50,000.00, that figure representing the “sum certain” that Plaintiff is entitled to pursuant to Section 13(B) of the contract ( see Reynolds Sec. v. Underwriters Bank & Trust Co., 44 N.Y.2d 568, 572 [1978] ). While Plaintiff also claims that he is entitled to an additional $43,075.00 as payment for the remainder of the first year of the contract, the plain language of Section 13(B) provides otherwise. Section 13(B) reads as follows:
In the event of the termination of this agreement for anything other than cause', BARDIS shall be entitled to receive a flat commission of TWENTY FIVE THOUSAND ($25,000.00) DOLLARS per year for years two (2) and three (3) only. All other benefits to which BARDIS enjoyed under this Agreement shall cease upon termination. Upon payment of said commissions, all obligations from THE GYM to BARDIS end. (emphasis added)
Wherefore it is hereby
ORDERED that plaintiff's motion is granted and Defendant's answer is hereby stricken; and it is further
ORDERED that the Clerk is directed to enter judgment in favor of Plaintiff and against Defendant in the sum of $50,000.00, with interest at the rate of 9% per annum from the date of April 13, 2007, until the date of the decision on this motion, and thereafter at the statutory rate, as calculated by the Clerk, together with costs and disbursements as taxed by the Clerk.
This constitutes the decision and order of the court. All other relief requested is denied.