Opinion
INDEX #EF005823/2017
11-20-2018
CELEBRITY FARMS, LLC, PLAINTIFF, v. FARM FAMILY CASUALTY INSURANCE COMPANY, DEFENDANT.
NYSCEF DOC. NO. 91 At a term of the IAS Part of the Supreme Court of the State of New York, held in and for the County of Orange, at the 1841 Court House, 101 Main Street, Goshen, New York 10924 on the 20th day of November, 2018. To commence the statutory time for appeals as of right (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of entry, on all parties. DECISION AND ORDER
Motion date: 8/24/18
Motion Seq. #4 VAZQUEZ-DOLES, J.S.C.
The following papers numbered 1 - 14 were read on Defendant's motion to strike, dismiss, or preclude the amended complaint for failing to comply with duly served discovery requests:
Notice of Motion/Affirmation of Yale Glazer, Esq./Exhibits A - H/Affirmation of Good Faith ......................................................................................... 1 - 11
Affirmation in Opposition of Angelo Langadkis III, Esq. /Exhibit A ................................... 12 -13
Reply Affirmation of Yale Glazer, Esq ................................................................................ 14
This first-party insurance coverage action arises out of a fire that occurred on March 15, 2016 at the South Florida Trotting Center ("SFTC") in Lake Worth, Florida (the "Fire"). Plaintiff, a New York insured, trained and stabled horses at its Goshen, New York facility. Defendant, (hereinafter, "Farm Family") insured the plaintiff's Goshen locations and its contents. In March, 2016, plaintiff took their horses and trainers, together with various supplies and equipment from New York to South Florida Trotting Center for the winter of 2016. A fire destroyed a barn at STFC resulting in the death or injury to several horses and allegedly damaged plaintiff's supplies and equipment located at SFTC. It is also alleged that the Plaintiff's farm in Goshen, New York was affected by a windstorm on June 30, 2017 resulting in damage to several structures including a residential building located on the property known as 245 Mt. Joy Road, Middletown, New York. This claim was also denied and Plaintiff has filed an amended complaint to include damages related to the wind claim as well. The Complaint was filed on July 26, 2017, and the Amended Complaint was filed on September 13, 2017.
Plaintiff originally alleged three causes of action sounding in breach of contract, breach of common law duty of good faith and fair dealing, and a violation of General Business Law §349. By Decision and Order of this Court dated December 13, 2017, Plaintiff's Second and Third Causes of action were dismissed along with all claims seeking recovery for damage, injury or death to horses. Additionally, any claims for punitive damages or attorney fees were determined to be non-recoverable. Therefore, the only cause of action remaining is one for breach of contract for the insurer's failure to pay the claims. Motion to Strike and Dismiss or Preclude:
In the instant motion, Defendant alleges that Plaintiff was served with Supplemental demands for discovery after the depositions on April 30, 2018, has turned over some, but not all documents requested, and has failed to respond formally in writing to those demands not provided. Plaintiff further alleges that this issue was raised and discussed during a compliance conference before the Court on July 19, 2018. At that conference, Plaintiff was Ordered to formally respond to the supplemental discovery demands on or before August 3, 2018, and Defendant was directed to bring this formal motion should Plaintiff fail to comply with the Court's Order. Defendant now claims that Plaintiff still has not formally complied with the discovery demands.
Plaintiff opposes this motion and argues that Plaintiff has turned over "hundreds of documents", and has submitted to a deposition so dismissal is not appropriate as most of the discovery is complete. Plaintiff then groups the outstanding discovery into categories and addresses them as follows:
First Category: relating to correspondence between Aspen and Great American- any documents of this nature which were in the possession of Plaintiff have been turned over and are included as Exhibit A attached to this motion.
Second Category: relating to invoices and substantiating of damages and proof of replacement- Plaintiff has requested these items from the 'controller' of Celebrity Farms, Anthony Stathis, who has been unsuccessful in locating them. Plaintiff argues that these documents can be obtained from Home Depot or the manufacturer of the items at issue with a subpoena by Defendant.
Third category: relating to invoices and proof of initial purchase of destroyed items-Plaintiff again claims that the request for these items was made to Anthony Stathis who is very busy and can not locate them. Plaintiff argues that they are available by subpoena if Plaintiff or Defendant make the request.
In essence, Plaintiff argues that dismissal and preclusion are inappropriate because Defendant can get the proof of Plaintiff's claim by subpoena. In reply, Defendant argues that Plaintiff still has not fully complied with the demands because they have not indicated which of the 987 pages of documents which Plaintiff turned over, were given for which demand. Moreover, Defendant argues that the 'dump' of documents received are either duplicative or items not demanded. Additionally, Defendant argues that the lack of a formal response indicating the location of these documents, prevented Defendant from obtaining the same through subpoena mechanisms. Analysis:
While public policy favors the resolution of cases on their merits, (see Sippin v Gallardo, 287 AD2d 703(2nd Dept. 2001)), it is essential to the function and efficiency of the Court for parties to comply with discovery. "A court may dismiss an action if the plaintiff "wilfully fails to disclose information which the court finds ought to have been disclosed" (citing CPLR 3126)." Wolfson v Nassau County Med. Ctr., 141 AD2d 815, 815 [2d Dept 1988],(where the Court dismissed the complaint after a two year delay in responding to interrogatories, and counsel offers no excuse for the delay.) Although such drastic willfulness is not present in the instant case, Plaintiff has had ample time to file a formal response to demands and subpoena the records which he needs to prove his case. The Court finds that Plaintiff has failed to give a specific written response although served twice with demands, and Ordered to once by this Court on July 19, 2018. Furthermore, the Court notes that Plaintiff's response to this motion attempts to switch the burden of proof to Defendant by suggesting that Defendant should subpoena the receipts from Home Depot or the other sellers or manufacturers which are needed by Plaintiff to prove the cost of replacement. Accordingly, while the drastic remedy of dismissal is not appropriate in this case, a conditional order of preclusion is necessary to move this case toward trial. Therefore, upon a reading of all the papers and proceedings held herein, it is hereby
ORDERED that Defendant's motion striking the complaint shall is granted unless by December 6, 2018, Plaintiff files a formal written response to Plaintiff's Supplemental Demand for discovery, and it is further
ORDERED that Defendant's motion to preclude evidence and testimony is granted unless Plaintiff produces invoices and proof of replacement within 45 days of the date of this Decision and Order, and it is further
ORDERED that all parties are directed to appear for a status conference on January 23, 2019 at 9:15am.
The foregoing constitutes the Decision and Order of this Court. Dated: November 20, 2018
Goshen, New York
ENTER:
/s/_________
HON. MARIA S. VAZQUEZ-DOLES, J.S.C. TO: Counsel via NYSCEF