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Sargeant v. Walt Witman Mall LLC.

Supreme Court, Kings County
Mar 8, 2019
62 Misc. 3d 1226 (N.Y. Sup. Ct. 2019)

Opinion

11257/2015

03-08-2019

Trevor SARGEANT, Plaintiff, v. WALT WHITMAN MALL LLC, Simon Mall, Walt Whitman Shops; Simon Mall d/b/a Walt Whitman Shops; Walt Whitman Mall d/b/a Simon Mall and/or Walt Whitman Shops and AAA Maintenance, LLC., Defendants.

Neal Forman, Esq., 26 Court Street, Suite 2606, Brooklyn, NY 11242, (718) 625-4423, Attorney for Plaintiff Stagg, Terenzi, Confsione & Wabnik, LLP, Michael C. Dombrowski, Esq., 401 Franklin Avenue, Suite 300, Garden City, New York 11530, (516) 812-4500, Attorney for Defendant


Neal Forman, Esq., 26 Court Street, Suite 2606, Brooklyn, NY 11242, (718) 625-4423, Attorney for Plaintiff

Stagg, Terenzi, Confsione & Wabnik, LLP, Michael C. Dombrowski, Esq., 401 Franklin Avenue, Suite 300, Garden City, New York 11530, (516) 812-4500, Attorney for Defendant

Francois A. Rivera, J.

By notice of motion filed on June 25, 2018, under motion sequence five, defendant, Walt Whitman Mall, LLC (hereinafter WWM) has moved for an order pursuant to CPLR 3126 (3) striking the instant complaint based on plaintiff Trevor Sargeant's (hereinafter Sargeant) failure to appear for a court ordered independent medical examination (hereinafter IME). WWM has also moved pursuant to CPLR 3126 (2) for an order precluding Sargeant from providing testimony and evidence at trial; or in the alternative, compelling Sargeant to appear for an independent medical examination and to respond to WWM's discovery demands. WWM has also moved pursuant to 22 NYCRR 130-1.1 for an award for the costs of the instant motion.

By notice of cross motion filed on June 28, 2018, under motion sequence six, (hereinafter the first cross motion) Sargeant has moved for an order striking defendant WWM's answer.

By notice of cross motion filed on August 1, 2018, under motion sequence eight (hereinafter the second cross motion), Sargeant has moved for an order: (1) dismissing WWM's motion; (2) granting Sargent's cross motion; and (3) awarding sanctions to Sargent based on WWM's frivolous conduct.

BACKGROUND

On September 9, 2015, plaintiff commenced an action against WWM to recover damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's Office (hereinafter KCCO). On October 29, 2015, WWM filed a verified answer with the KCCO. On May 3, 2016, plaintiff filed an amended summons and verfied complaint which added AAA Maintenance LLC as a defendant. On June 7, 2016, WWM filed a verified answer to the amended summons and verified complaint. On September 23, 2016, AAA Maintenance LLC joined issue by filing its verified answer. By decision and order dated November 21, 2017 (hereinafter the severance order), the Court granted Saregeant's motion pursuant to CPLR 603 to severe defendant AAA Maintenance LLC from the instant action.

The amended verified complaint alleges the following salient facts. On December 13, 2013, plaintiff was injured when she tripped or slipped on snow or ice in a parking lot adjacent to 160 Walt Whitman Road, Hunting Station, New York, a property owned by WWM. Plaintiff has claimed that the accident was caused by WWM's negligent maintenance of the parking lot.

MOTION PAPERS

Defendant WWM's motion (sequence five) papers consists of a memorandum of law, an affirmation of counsel, an affirmation of good faith and seven annexed exhibits labeled A through G. Exhibit A is a copy of plaintiff's summons and verified complaint. Exhibit B is a copy of WWM's verified answer. Exhibit C is a copy of the severance order. Exhibit D is a copy of a document denominated as a "Notice of Physical Examination" from Express Exams, Inc. dated April 17, 2018. Exhibit E is a copy of a Central Compliance Part Order dated April 19, 2018. Exhibit F is a copy of a document described as a "No-Show Invoice" from Express Exams, Inc. dated May 10, 2018. Exhibit G is a copy of a document denominated as a Post EBT Demand to Plaintiff.

Sargeant's first cross motion (sequence six) papers consist of an affirmation of counsel and one annexed exhibit labeled 1. Exhibit 1 is described as plaintiff's responses to WWM's discovery demands made after an examination for trial. Sargeant's cross motion sequence six also serves as opposition to WWM's motion sequence five.

WWM submitted a memorandum of law in opposition to Sargeant's cross motion and in further support of its motion sequence five. WWM also submitted an affirmation of its counsel and six exhibits labeled A through F. Exhibit A is another affirmation of its counsel. Exhibit B is denominated as an affirmation of good faith and is dated June 22, 2018. Exhibit C is a transcript of Sargeant's deposition conducted on March 13, 2018. Exhibit D is described as a docket search from the New York Supreme Court Case Detail for Sargeant v. Waldron , Index No. 5652/1997. Exhibit E is described as a docket search from the New York Supreme Court Case Detail for Sargeant v. M.S.B.A. , Index No. 8538/1986. Exhibit F is described as a docket search from the New York Supreme Court Case Detail for Sargeant v. Village Bindery Inc. , Index No. 30020/1999.

Sargeant's second cross motion (sequence eight) papers consist of an affirmation of counsel and one annexed exhibit labeled 1. Exhibit 1 is a copy of Sargeant's first cross motion.

WWM has opposed Sargeant's second cross motion with a memorandum of law. The memorandum of law is also meant to serve as a reply to Sargeant's opposition to WWM's motion sequence five. WWM has also opposed Sargeant's second cross motion with an affirmation of its counsel.

LAW AND APPLICATION

WWM's Motion

WWM has moved for an order striking the complaint based on, among other things Sargeant's failure to appear for a court ordered IME. WWM has also moved pursuant to CPLR 3126 (2) for an order precluding Sargeant from providing testimony and evidence at trial; or in the alternative, compelling Sargeant to appear for an IME and to respond to WWM's discovery demands. WWM has also moved pursuant to 22 NYCRR 130-1.1 for an award for the costs of the instant motion.

WWM's motion is supported by, among other things, an affirmation of good faith in compliance with 22 NYCRR 202.7 [a] and [c]. The affirmation claims, among other things, that on April 19, 2018, the Court issued an order during a compliance conference which directed the plaintiff to appear for an IME scheduled by WWM on or before May 9, 2018. WWM avers that on the eve of the scheduled IME, Sargeant's counsel advised WWM that Sargeant would not be appearing because WWM was in default of its own discovery obligations.

There is no dispute that prior to making the motion Sargeant did not appear for an IME scheduled by WWM. There is also no dispute that Sargeant advised WWM that it did not attend the IME because Sargeant believed that WWM was first obligated to appear for an examination before trial and had not yet done so.

By notice of motion filed on July 11, 2018 under motion sequence number seven, WWM moved for an order pursuant to Section 202.21 (d) and (e) of the Uniform Rules of the New York State Trial Courts for an order vacating the Note of Issue based on, among other things, Sargeant's failure to appear for an IME.

By decision and order dated on October 19, 2018, the Court granted WWM's motion under motion sequence number seven to the extent of ordering Sargeant to appear for an IME by December 7, 2018.

On December 7, 2018, Sargeant and WWM appeared before the Court for additional proceedings on WWM's motion and on Sargeant's cross motion and second cross motion. At the time, Sargeant and WWM stated that Sargeant's alleged failure to appear for an IME had been resolved and was no longer a issue. WWM contended that there was still an unresolved discovery issue. WWM contended that it was due authorizations for non privileged legal files pertaining to the legal representation provided by Sargeant's counsel in a prior personal injury lawsuit commenced by Sargeant in 1989. Sargeant's counsel denied any knowledge or memory that any such prior representation had occurred.

CPLR 3126 addresses the penalties for refusal to comply with an order or to disclose as follows:

If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them:

(1) an order that issues to which the information is relevant shall be deemed resolved for the purposes of the action in accordance with the claims of the party obtaining the order; or

(2) an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or

(3) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.

The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court's discretion (see Chowdhury v. Hudson Val. Limousine Serv., LLC , 162 AD3d 845 [2nd Dept 2018]. Before a court invokes the drastic remedy of striking a pleading, or even of precluding all evidence, there must be a clear showing that the failure to comply with a court order was willful and contumacious ( Crupi v. Rashid , 157 AD3d 858, 859 [2nd Dept 2018] ).

The affirmation of good faith submitted by WWM's counsel in accordance with 22 NYCRR 202.7 (a) and (c) sufficiently addressed the efforts by WWM to resolve the dispute pertaining to Sargeant's failure to appear for an IME. However, regarding WWM's request for the aforementioned non privileged legal files, the affirmation of good faith did not substantively comply with the requirements of court rule (see Martinez v. 1261 Realty Co., LLC , 121 AD3d 955 [2nd Dept 2014] ). In particular, the affirmation did not provide any details of the communications between the parties evincing diligent effort to resolve this branch of the discovery dispute, or indicating good cause why no such communications occurred ( Deutsch v. Grunwald , 110 AD3d 949 [2nd Dept 2013] ). Accordingly, WWM's motion must be denied.

Sargeant's Cross Motion

Sargeant has cross moved, under motion sequence six, for an order denying WWM's motion and striking defendant WWM's answer. Sargeant's first cross motion contains an affirmation of Sargeant's counsel and one annexed exhibit labeled exhibit 1. Exhibit 1 is described as Sargeant's alleged responses to WWM's discovery demands.

Sargeant claims that WWM has failed to appear for an examination before trial. Sargeant also claims that WWM did not respond to its request to reschedule Sargeant's IME. Contrary to the requirements of 22 NYCRR 202.7 (a) and (c), Sargeant's cross motion does not contain an affirmation of Sargeant's good faith effort to resolve the discovery dispute with WWM. Accordingly, Sargeant's cross motion for sanction against WWM based on an alleged discovery dispute must be denied. It is noted that Sargeant did not deny or dispute that it did not appear for an IME scheduled by WWM.

Sargeant's Second Cross Motion

By its second cross motion, Sargeant has moved for an order: (1) dismissing WWM's motion; (2) granting Sargeant's cross motion to strike WWM's answer; and (3) awarding sanctions to Sargeant based on WWM's frivolous conduct.

Sargeant's second cross motion contains an affirmation of Sargeant's counsel and one annexed exhibit labeled exhibit 1. Exhibit 1 is described as a copy of Sargeant's first cross motion.

Contrary to the requirements of 22 NYCRR 202.7 (a) and (c), Sargeant's second cross motion also lacks an affirmation of Sargeant's good faith effort to resolve the discovery dispute with WWM. Accordingly, Sargeant's second cross motion for sanctions based on WWM's alleged failure to comply with discovery dispute must be denied.

CPLR 2214 (a) provides that a notice of motion shall "specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor" (see Abizadeh v. Abizadeh , 159 AD3d 856, 857 [2nd Dept 2018] ). With regard to the branch of Sargeant's cross motion seeking sanctions against WWM, Sargeant does not cite any law or provide any documentation in relation to the relief requested to meet the requirements of CPLR 2214 (a). Therefore, this branch of Sargeant's motion must also be denied.

CONCLUSION

The branch of the motion by Walt Whitman Mall, LLC for an order pursuant to CPLR 3126 (3) striking the instant complaint based on Trevor Sargeant's failure to appear for a court ordered independent medical examination is denied.

The branch of the motion by Walt Whitman Mall, LLC for an order pursuant to CPLR 3126 (2) for an order precluding Trevor Sargeant from providing testimony and evidence at trial; or in the alternative, compelling Sargeant to appear for an independent medical examination and to respond to its discovery demands is denied.

The branch of the motion by Walt Whitman Mall, LLC for an order pursuant to 22 NYCRR 130-1.1 awarding it costs for making the instant motion is denied.

The cross motion of Trevor Sargeant for an order striking Walt Whitman Mall, LLC's answer is denied.

The branch of the second cross motion by Trevor Sargeant for an order awarding sanctions against Walt Whitman Mall, LLC is denied.

The foregoing constitutes the decision and order of this Court.


Summaries of

Sargeant v. Walt Witman Mall LLC.

Supreme Court, Kings County
Mar 8, 2019
62 Misc. 3d 1226 (N.Y. Sup. Ct. 2019)
Case details for

Sargeant v. Walt Witman Mall LLC.

Case Details

Full title:Trevor Sargeant, Plaintiff, v. Walt Witman Mall LLC., SIMON MALL, WALT…

Court:Supreme Court, Kings County

Date published: Mar 8, 2019

Citations

62 Misc. 3d 1226 (N.Y. Sup. Ct. 2019)
2019 N.Y. Slip Op. 50260
113 N.Y.S.3d 833