Opinion
Index No: 512643/2016
01-28-2019
MARDOCHE HAZAN., Plaintiff, v. FLUSHING UNIQUE HOMES, LLC, THE COMMUNITY PRESERVATION CORP., JP MORGAN CHASE BANK N.A., CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD, NYC BUREAU OF HIGHWAY OPERATIONS, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE AND "JOHN DOE" AND "JANE DOE" 1-200,Said names being fictitious, intended to be (I) their heirs, devisees and personal representatives and his, their or any of their successors in right, title and interest, the names of the last two hundred defendants being unknown to plaintiff, the person or parties intended to be any person in possession of or claiming interest in or lien against the property described in the verified complaint, and whose interest may not be protected under applicable emergency rent laws, or (ii) the owners, officers, directors, shareholders and/or members of defendant FLUSHING UNIQUE HOMES, LLC, whose names are currently unknown to plaintiffs but will be discovered during the course of discovery in this action, Defendant. and FLUSHING UNIQUE HOMES, LLC Third Party Plaintiff, v. MOSES FISCHMAN and ENYQ CORP., Third-Party Defendant
NYSCEF DOC. NO. 176 At the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 28th day of January, 2019. PRESENT: HON. LIZETTE COLON, Acting Justice. DECISION AND ORDER The following papers numbered 1 to 6 read on plaintiff/third party defendant motion to restore and defendant/third party plaintiff's motion to strike submitted on January 16, 2019:
| Papers Numbered | |
|---|---|
| Notice of Motion/Order to Show Cause/Petition/Cross Motion andAffidavits (Affirmations) Annexed | 1-5 |
| Opposing Affidavits (Affirmations) | 6-7 |
| Reply Affidavits (Affirmations) | 8 |
The foregoing is a final decision and order on plaintiff/third party defendant's motion to restore (MS #9) and interim order and decision on defendant/third party plaintiff's motion to strike/compel and impose sanctions (MS #7).
Procedural History
By summons and complaint filed July 22, 2016, plaintiff Mardoche Hazan ("plaintiff") commenced this action against Flushing Unique Homes, LLC; Ontario Wealth Management; and The Community Preservation Corp, et al. On November 2, 2016, the RJI was filed and served. On September 26, 2017, a preliminary conference order was issued, directing examinations before trial to be held on or before January 17, 2018; disclosure be exchanged within 30 days; demands within 30 days and responses 30 days thereafter; and impleader actions to be commenced within 60 days after completion of EBTs and the discovery end date/ note of issue due date was May 20, 2018. On February 20, 2018, a central compliance order was issued, directing that the parties exchange discovery demands within 60 days, and responses to be served within 30 days thereafter. On March 2, 2018, defendant Flushing filed its answer and filed a third party summons and complaint against third party defendants Moses Fischman and Enyq. On July 3, 2018, third party defendant Fischman (counsel also represents plaintiff and third party defendant Enyq) makes a pre-answer motion to dismiss defendant Flushing's third party claims against third party defendant Fischman. On August 10, 2018, by order of Hon Muriel Hubsher, JHO, it is noted that the motion to dismiss is pending for August 15, 2018 and "discovery demands are ordered by September 14, 2018 and responses 30 days thereafter" [October 15, 2018]. On August 15, 2018, By order of Hon. Richard Velasquez, third party defendant Fischman's pre answer motion to dismiss defendant Flushing's third party complaint was adjourned and it is ordered that "Discovery shall continue during the pendency of motion in accordance with Order dated 8/10/18". On September 14, 2018, it is undisputed that Defendant Flushing served discovery demands upon plaintiff/third party defendants' counsel. On November 6, 2018, defendant/third party plaintiff makes the instant motion to strike/compel and impose monetary sanctions (MS #7). On November 16, 2018, by Order of the Hon. Muriel S. Hubsher, the instant motion to strike/compel and impose monetary sanctions was adjourned to January 16, 2019 and "plaintiff is directed to respond to outstanding discovery demands 9/14/18 within 30 days of this order" [by 12/16/18]. On November 21, 2018, a final pre note order was issued by the Hon. Martin Schneier, JHO, noting that there were pending motions, including defendant's Flushing's instant motion to strike/compel and sanction and further reiterating the Court's "interim order dated 11/16/18 directing Plaintiff to respond to outstanding discovery on or before 12/16/18". Plaintiff/ third party defendant defaulted in appearance at the final pre note conference of November 21, 2018. On December 3, 2018, the matter was disposed for failure to file the note of issue. On December 5, 2018, by Order of the Hon. Richard Velasquez, third party defendant Fischman's motion to dismiss the third party complaint is denied. On December 28, 2018, plaintiff/third party defendants brought the instant motion to restore (MS #9). On January 15, 2019, on the eve of return date of the instant motions, plaintiff/third party defendants filed its alleged responses, signed by counsel, to defendant's Flushing first set of interrogatories.
March 7, 2017, a stipulation of discontinuance with prejudice was filed as to defendant Ontario Weath Management Corp. only
Plaintiff/Third Party Defendant's Motion to Restore
By Order of the Hon. Martin Schneier JHO, dated November 21, 2018, plaintiff was directed to file of a Note of Issue on or before November 30, 2018. Plaintiff/third party defendant failed to file the Note of Issue and comply with the Court's order. Consequently, on December 3, 2018, the matter was disposed for failure to file the note of issue. Although plaintiff/third party defendant argues that he was unable to file the note of issue since discovery remained outstanding, noteworthy to this Court, is that plaintiff/third party defendants by Interim order dated November 16, 2018 and Final Pre-Note Order dated November 21, 2018 was reminded and directed to respond to outstanding discovery on or before December 16, 2018 and plaintiff/third party defendant failed to do so and offers no excuse or reason for its non compliance. This Court further notes that plaintiff/third party defendant defaulted in appearance at the final pre note conference of November 21, 2018 and offers no excuse or reason for its non appearance. Furthermore, plaintiff/third party defendant argues that it did not respond to discovery because of its pending motion to dismiss; however this Court notes that discovery was never stayed and repeatedly ordered (see order of Hon. Richard Velasquez, dated August 15, 2018, "Discovery shall continue during the pendency of the motion [third party defendant's motion to dismiss] in accordance with Order dated 8/10/18"). Moreover, by Order/Decision of Hon. Richard Velasquez, dated December 5, 2018, third party defendant's motion to dismiss was denied; so even assuming arguendo disco very had been stayed, third party defendant offers no reason or excuse for its non compliance since the denial of its motion (over a month ago).
However, in as much as said disposition was not a dismissal pursuant to CPLR §3216, this Court hereby restores this matter to the active pre note calendar.
Defendant's Motion to Strike
While plaintiff/third party defendants argue that discovery has been provided, this Court notes that the alleged discovery was provided via efiling on January 15, 2019, which was the eve before the instant motions and also one month after they were due pursuant to the most recent repeated orders of the Court. Notwithstanding the untimeliness and defect of the responses, which were signed by counsel and not by someone with actual knowledge pursuant to CPLR § 3133(b), the defendants are hereby directed to respond pursuant to CPLR 3133(b) to the aforementioned interrogatories on or before February 4, 2019 (while in chambers on oral argument, the plaintiff/third party defendants were directed to properly respond).
This is an interim order, the parties are directed to return for further oral argument on the issue of striking/precluding and the issue of costs/sanctions on February 6, 2019 for final decision on this motion.
This constitutes the decision/order/judgment of the Court. The signing of this Decision/Order/Judgment shall not constitute entry or filing under CPLR § 2220. Counsel is not relieved from the applicable provisions of that rule providing for filing, entry and notice of entry.
ENTER.
January 28, 2019
/s/_________
Lizette Colon
Acting Supreme Court Justice