Opinion
Index No. 656912/2019 Motion Seq. No. 001
05-25-2022
STEVEN SORENSEN, Plaintiff, v. MANHATTAN REGIONAL CENTER LLC and DAVID MARX, Defendants.
Unpublished Opinion
MOTION DATE 09/10/2021
PRESENT: HON. LOUIS L. NOCK, Justice
DECISION + ORDER ON MOTION
HON. LOUIS L. NOCK, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, and 36 were read on this motion forDISCOVERY.
Upon the foregoing documents, plaintiffs motion to compel disclosure is granted in part and to the extent set forth herein based on the following memorandum decision.
In this action for breach of contract and violations of Labor Law § 190, plaintiff Steven Sorenson ("plaintiff) asserts that defendants Manhattan Regional Center LLC and David Marx ("defendants") have been deficient in their responses to plaintiffs discovery demands. Specifically, plaintiff asserts that defendants failed to produce any documents dated between November 9, 2012 and March 30, 2014, which time period is relevant to plaintiffs claims arising in 2013 (NYSCEF Doc. No. 13, ¶ 10). In response, defendants state that after diligent searches of their records using search terms provided by plaintiff, including a supplemental production following defendants' first response to plaintiffs discovery demands, no further responsive records exist (NYSCEF Doc. No. 35, ¶¶ 2-6; NYSCEF Doc. No. 33).
CPLR 3124 provides that "[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response." Where a party "refuses to obey an order for disclosure or willfully 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" (CPLR 3126). "A complete failure to disclose is not a prerequisite to the imposition of sanctions pursuant to CPLR 3126, the relevant factor being whether the failure to disclose relevant documents at issue was willful and contumacious" (Waltzer v Tradescape & Co., L.L.C., 31 A.D.3d 302, 303 [1st Dept 2006]). Willful and contumacious behavior may be inferred from repeated disregard of the Court's discovery orders without reasonable excuse (Rosengarten v Born, 161 A.D.3d 515, 515 [1st Dept 2018]).
Here, plaintiffs have not demonstrated that defendants have willfully failed to comply with discovery orders. While the time it has taken to reach this point in the discovery process is less than ideal, the record reflects that defendants have produced responses to plaintiffs demands, substantial numbers of responsive documents, as well as a supplemental production following plaintiffs allegations of deficiency (NYSCEF Doc. No. 32; NYSCEF Doc. No. 35, ¶¶ 2-6). Such conduct is simply not sufficient to warrant sanctions (Glaser v City of New York, 79 A.D.3d 600 [1st Dept 2010] ["The record reflects that the City adequately responded to discovery demands, albeit in response to several orders calling for production, as well as motions to strike"]). Plaintiffs allegation that he is in possession of responsive documents from the relevant time period that have not been produced is not evidence that defendants must be withholding similar documents.
Defendants' counsel represents, both to the Court and previously to plaintiffs counsel (NYSCEF Doc. No. 33), that diligent searches of defendants' records have disclosed no further responsive documents. Based on the record, it will be sufficient for the Court for defendants to memorialize such representation by filing a Jackson affidavit documenting the searches undertaken by defendants, including "where the subject records were likely to be kept, what efforts, if any, were made to preserve them, whether such records were routinely destroyed, [and] whether a search [was] conducted in every location where the records were likely to be found" (Henderson-Jones v City of New York, 87 A.D.3d 498, 505 [1st Dept 2011], citing Jackson v City of New York, 185 A.D.2d 768, 770 [1st Dept 1992]). Further, the Court will preclude introduction of any documents revealed following submission of such an affidavit for use on summary judgment or at trial if such documents could have been produced beforehand but were not, absent good cause shown for the failure to timely produce the documents in question.
Accordingly, it is hereby
ORDERED that plaintiffs motion to compel is granted in part; and it is further
ORDERED that defendants shall submit to plaintiff and the Court, on or before June 10, 2022, a Jackson affidavit regarding the searches undertaken by plaintiff and certifying that all responsive documents in defendants' possession have been produced to plaintiff; and it is further
ORDERED that any documents used on a motion for summary judgment or at trial that could have been produced prior to the date of filing of the Jackson affidavit but were not, are precluded, absent the party relying on the documents showing good cause why they were not timely produced; and it is further
ORDERED that the motion is otherwise denied; and it is further ORDERED that counsel are directed to appear for a status conference in Room 1166, 111 Centre Street, on June 29, 2022, at 10:00 AM.
This constitutes the Decision and Order of the Court.