Opinion
No. 22081/09.
06-08-2015
Ashley BUIST, Plaintiff, v. The BROMLEY COMPANY, LLC and Punia and Marx, Incorporated, Defendants.
Jason D. Minard, Minard Law PLLC, Highland, for Plaintiff. John J. Barbera, Martin Clearwater & Bell LLP, Anna Guiliano, Esq ., Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York, for Defendants.
Jason D. Minard, Minard Law PLLC, Highland, for Plaintiff.
John J. Barbera, Martin Clearwater & Bell LLP, Anna Guiliano, Esq ., Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York, for Defendants.
Opinion
FRANCOIS A. RIVERA, J.
Recitation in accordance with CPLR 2219(a) of the papers considered on the order to show cause of Ashley Buist (hereinafter Buist or the movant) filed on May 5, 2015, under motion sequence number eighteen for an order: (1) sanctioning the defendants The Bromley Company, LLC and Punia and Marx, Incorporated (hereinafter the defendants) by striking their answer and entering a default judgment against them for failure to comply with certain discovery demands; (2) in the alternative, an order precluding the defendants use of certain evidence and; (3) awarding costs and reasonable attorney's fees associated with the instant motion. The defendants have jointly opposed the motion.
In June of 2015, the defendants submitted two sets of opposition papers to the instant motion by two separate law firms claiming to jointly represent the defendants. The papers reflect that each firm represents all the defendants. While the defendants may engage as many lawyers and law firms as they wish, the defendants may only make or oppose a motion with one set of papers. Plaintiff's motion seeks sanctions but not on this basis and indeed is silent on this issue. Defendants are nevertheless directed to comply with this order.
-Order to show cause
-Affirmation in support
-Exhibit A–W
-Affirmation in opposition
-Exhibit A–D
-Affirmation in opposition
-Exhibit A–O
BACKGROUND
On August 31, 2009, Buist commenced the instant action for damages for personal injuries by filing a summons and verified complaint (hereinafter the commencement papers) with the Kings County Clerk's office (hereinafter KKCO). On September 4, 2009, Buist filed and served an amended verified complaint containing forty six allegations of fact in support of two causes of action. The first cause of action is for damages for personal injuries due in part to the defendants' negligent maintenance of certain real property as landlords resulting in a dangerous condition which caused her injuries as a tenant. The second cause of action is for damages due to the defendants violation of Real Property Law § 235(b).
The defendants interposed and filed on December 18, 2009, an answer with one counterclaim for attorney's fees. Buist joined issue by a reply to the counterclaim filed on December 23, 2009. On March 28, 2014, Buist filed a note of issue and certificate of readiness.
LAW AND APPLICATION
There is no dispute that on March 28, 2014, Buist filed a note of issue and certificate of readiness. Also undisputed is that by the instant motion, she is seeking sanctions as well as attorney's fees and cost against the defendants based on their alleged willful and contumacious failure to comply various discovery demands.
Buist is not claiming that she had leave of the Court to continue discovery after the filing of the note of issue. Nor does she claim that she had an agreement with the defendants to continue to conduct discovery after the note of issue was filed. Contrary to the requirements of 22 NYCRR 202.7, Buist did not provide an affirmation of counsel's good-faith efforts to resolve the discovery dispute ( [22 NYCRR 202.7 ]; see also Ponce v. Miao Ling Liu, 123 AD3d 787 [2nd Dept 2014] ).
Based on these facts, the following principles apply requiring denial of the motion. The failure to provide an affirmation in accordance with 22 NYCRR 202.7 requires denial of the motion (Id. ). A motion to vacate the note of issue within 20 days of its service on the ground that the case was not ready for trial and a motion for permission to conduct post-note of issue discovery on the ground that unusual or unanticipated circumstances had developed after the filing of the note of issue are the only two methods available to a party who seeks to obtain disclosure after the filing of a note of issue (see N.Y.Ct.Rules, §§ 202.21(d, e) ; Singh v. Finneran, 100 AD3d 735 [2nd Dept 2012] ).
Furthermore, a plaintiff is deemed to have waived the right to further disclosure by filing a note of issue and certificate of readiness, which states that disclosure is complete and that there are no outstanding disclosure requests (see Melcher v. City of New York, 38 AD3d 376, 377 [2nd Dept 2007] ). This is precisely what Buist did in the instant action.
By the instant motion, Buist is not seeking to strike the note of issue due to the existence of outstanding discovery. Nor has she demonstrated any unusual or unanticipated circumstances which would warrant further discovery post note of issue to avoid prejudice. Therefore, Buist has waived and is not entitled to further discovery. Consequently, Buist cannot establish entitlement to any sanctions against the defendants premised on alleged disclosure violations.
Buist has also requested costs and attorney's fees. CPLR 8106 provides that costs upon a motion may be awarded to any party, in the discretion of the court, and absolutely or to abide the event of the action. CPLR 8101 provides that the party in whose favor a judgment is entered is entitled to costs in the action, unless otherwise provided by statute or unless the court determines that to so allow costs would not be equitable, under all of the circumstances (CPLR 8001 ). The party to whom costs are awarded is entitled to recover reasonable and necessary expenses as are taxable according to course and practice of the court, by express provision of law or by order of the court [CPLR 8301(a) ].
Buist has not obtained a judgment in her favor and is, therefore, not entitled to costs pursuant to CPLR 8101 or disbursements pursuant CPLR 8001. Furthermore, the Court in an exercise of discretion declines to award cost in connection with the instant motion pursuant to CPLR 8106.
“Under the general rule, attorney's fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule” (Pickett v. 992 Gates Ave. Corp., 114 AD3d 740 [2nd Dept 2014] citing Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487, 491, [1989] ).
Buist has offered no factual or legal basis for the awarding of attorney's fees.
CONCLUSION
Buist's motion for an order striking the defendants' answer and entering a default judgment against them for failing to comply with discovery demands is denied.
Buist's motion for an order precluding the defendants from using certain evidence at trial for failure to comply with discovery demands is denied.
Buist's motion for an order awarding costs and reasonable attorney's fees associated with the instant motion is denied.
The foregoing constitutes the decision and order of this court.