Opinion
Index No. 651050/2021
10-11-2022
The Board of Managers of the Seaport South Condominium, Plaintiff, v. Donald P Gobin and Denise Gobin, Defendants.
Thomas Torto, Esq., New York, NY, for plaintiff. Becker & Poliakoff LLP, New York, NY (Glenn H. Spiegel of counsel), for defendants.
Unpublished Opinion
Thomas Torto, Esq., New York, NY, for plaintiff.
Becker & Poliakoff LLP, New York, NY (Glenn H. Spiegel of counsel), for defendants.
GERALD LEBOVITS, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 were read on this motion for DISCOVERY.
This action arises from a dispute over the use of hallway space within a condominium apartment building, the Seaport South Condominium. Plaintiff is the Board of Managers of the Seaport South Condominium. Defendants, Donald Gobin and Denise Gobin, own Units 3L and 3M in the condominium. The Gobins also use hallway space adjacent to their units under a license agreement.
The original license agreement, entered into in August 2000, granted to the units' former owner a license to use 72 square feet of hallway space immediately adjacent to her units, initially for one year, and thereafter month-to-month. The monthly license fee was five percent of the two units' monthly common charges, then $56.64. Defendants purchased the units from the original license-holder, and assumed the license, in August 2004. Defendants used the licensed space under the terms of the original agreement for ten years.
In October 2014, plaintiff delivered a new license agreement to defendants under which the monthly fee would be $450, rather than five percent of the units' common charges (then $82.27). Defendants refused to sign the new license agreement. Plaintiff then informed defendants that it was terminating the original license agreement, and demanded payment under the terms of the new agreement (plus legal fees). Defendants refused to sign the new license agreement, offering instead to continue to pay the five-percent-of-common-charges amount.
In 2017, plaintiff filed a lien against the units for unpaid common charges, late fees, and legal fees, totaling $22,407.35. In 2021, plaintiff brought this action, seeking (i) a declaratory judgment that plaintiff was allowed to terminate the 2000 license agreement in favor of the revised license agreement that plaintiff delivered in 2014; (ii) damages in the amount of the $450 montly license fee, running from October 2014 onward, plus attorney fees; (iii) an injunction requiring defendants to restore the adjacent hallway space to its original condition. Defendants counterclaimed for (i) a declaratory judgment that plaintiff was not permitted to terminate the 2000 license agreement nor impose the terms of 2014 agreement, and that the related 2017 lien is invalid; and seeking damages (plus attorney fees) sounding in racial discrimination and breach of contract.
This motion arises from a dispute between the parties about whether plaintiff has sufficiently responded to document demands and interrogatories that defendants served on plaintiff in aid of their counterclaims. Defendants, arguing that plaintiff's responses were insufficient, move to compel under CPLR 3124; and also seek a conditional order under CPLR 3126 striking plaintiff's complaint, should plaintiff fail to comply satisfactorily. Defendants' request to compel is granted in part and denied in part; their request for a conditional order is denied.
DISCUSSION
I. The Branch of Defendants' Motion Seeking a Conditional Order
Defendants contend that this court should not only grant their motion to compel, but also enter a conditional order providing for the striking of plaintiff's complaint should plaintiff then fail to comply. This court disagrees. To strike a party's pleading under CPLR 3126 for discovery noncompliance, a court must first determine that the party's noncompliance was willful or in bad faith. (See McGilvery v New York City Transit Auth., 213 A.D.2d 322, 324 [1st Dept 1995]; accord De Socio v 136 E. 56th St. Owners, Inc., 74 A.D.3d 606, 608 [1st Dept 2010] [holding that lack of diligence in producing the requested material may not be grounds for striking a pleading].) Defendants have not shown that any noncompliance by plaintiff was willful for these purposes, rather than a more typical dispute about when and to what extent a party must provide potentially relevant discovery. The request for a conditional order is denied.
II. The Branch of Defendants' Motion Seeking to Compel Discovery Responses
Defendants also seek an order under CPLR 3124 compelling plaintiff to supplement its discovery responses. A party moving to compel under CPLR 3124 must establish that the discovery they seek is "material and necessary" and meets the test of "usefulness and reason." (Leventhal v Bayside Cemetery, 188 A.D.3d 604, 604 [1st Dept 2020] [internal quotation marks omitted].) Defendants' motion is granted in part and denied in part, as set forth below.
A. Defendants' Interrogatories
Interrogatories No. 8 through 10 seek information about any past owners to whom the plaintiff granted license agreements since 2000, details about their license agreements, the number of license agreements the plaintiff has revoked, and information about whether any grantees of a license agreement were required to restore common elements. (See NYSCEF No. 10 at 7-8.) These demands seek information relevant to defendants' counterclaim that plaintiff treated defendants disparately from other owners within the building with respect to the handling of license agreements. But plaintiff has represented that it has not entered into license agreements with any other unit owners in the building since 2000. Given this representation, plaintiff has sufficiently responded to these interrogatories. Plaintiff need not respond further.
Interrogatories No. 12 and 13 seek calculations for damages to restore the hallway and calculations of actual damages the plaintiff intends to seek at trial. (NYSCEF No. 10 at 10.) Plaintiff objects and states that these requests are "premature" given that it has not yet restored the hallway to its original condition and that attorney fee are still accruing. (NYSCEF No. 29 at 7.) Defendants argue that plaintiff must provide them with anticipated damages so they can adequately assess their claim. (NYSCEF No. 30 at 4 [defendants' reply affirmation].) The court agrees with defendants. Plaintiff must obtain and provide an estimate for the restoration and also provide the legal fees it has incurred thus far. This obligation should not be overly burdensome, given that plaintiff has already made some of these calculations when placing the lien on defendants' units for unpaid charges, late fees, and legal fees up to March 1, 2017. (NYSCEF No. 28 at 6 [affirmation in opposition].)
B. Defendants' Document Requests
Request No. 5 seeks a copy of the unit account statement starting from a zero balance. (NYSCEF No. 21 at 14.) Despite plaintiff's promise to provide the statement, it has failed to do so. (NYSCEF No. 22 at 2.) An account statement, which may be used to calculate unpaid fees, is necessary and relevant for an action concerning unpaid fines and assessments. Plaintiff must produce this document.
Requests 7 seeks all documents, communications, and correspondence about any other license agreement for the use of any of the Condominium's common elements. (NYSCEF No. 21 at 14). Plaintiff objects on the ground that "it is vague, overboard, not material or necessary to the instant action and palpably improper." (NYSCEF No. 22 at 4). This court disagrees with plaintiff, in part. This request is relevant to defendants' contention that plaintiff treated defendants differently (and unfairly) with respect to their license agreement out of improper discriminatory motives. (NYSCEF No. 30 at 6). Plaintiff must produce the requested documents for the period January 2000 through October 2014. If any of the documents are no longer available, plaintiff shall provide a detailed affidavit of diligent search.
Request No. 8 seeks all records, documents, and correspondence about the subject unit relating to the defendants and prior owner. (NYSCEF No. 21 at 14-5). This court agrees with plaintiff that this request is overbroad and unduly burdensome. The court declines to attempt to prune defendants' request for them. Plaintiff need not respond further to this request.
Request No. 9 asks for all Condominium Board meeting minute records related to (1) defendants in any capacity, (2) the subject unit, and (3) approval or disapproval of all license agreements or unit modifications as of January 1, 2000. (NYSCEF No. 21 at 15). Plaintiff objects to this request on the ground that the information sought is not discoverable. (NYSCEF No. 22 at 5). This bare response is unpersuasive. Plaintiff must provide all Board meeting minutes from January 2000 through October 2014 that concern (i) defendants' license agreement; or (ii) approval or disapproval of entering into any other license agreements with other owners in the building. If any of the minutes are no longer available, plaintiff shall provide a detailed affidavit of diligent search.
Request No. 10 asks for all unprivileged communications between all the Condominium's Board Members, Management, and Legal Counsel related to any topic concerning defendant, or any other license agreement for any other owner. (NYSCEF No. 21 at 15). Plaintiff objects on the ground that it was not in possession of any unprivileged communication. (NYSCEF No. 22 at 5). Defendants argue that if the information is not discoverable or plaintiff does not have the requested documents based on attorney-client privilege, plaintiff must provide a privilege log to under CPLR 3122 (b).
This court cannot discern whether this request is seeking only communications between the Board/Management and the Condominium's counsel on the enumerated topics, or is more broadly seeking communications (i) between/among Board members on those topics, (ii) communications between/among Board members and Management; or (iii) communications between Board/Management and counsel. If the request is limited only to communications between the Board/Management and counsel, this court is skeptical, absent a further showing from defendants, that plaintiff should have to respond further, given the likelihood that this type of communication will be privileged. On the other hand, if the request is broader, encompassing the three categories described in this paragraph, the request, as framed, is likely overbroad.
Defendants may, within seven days of entry of this order, serve a clarified version of Request No. 10 that is appropriately bounded along the lines set out in the court's determinations in this order. Plaintiffs shall respond or object to any revised version of this request within 30 days of receipt.
Request No. 11 seeks all documents and communications referred to in plaintiff's complaint. Although plaintiff directed defendants to a list of previously produced documents annexed in Exhibit B (NYSCEF No. 22 at 2-3), defendants argue that plaintiff did not produce the Deed dated August 24, 2004, referenced in complaint ¶ 10. This specific document is relevant to defendant's counterclaim as it provides a square footage of the unit, which might show that the deed treats the hallway space in dispute as part of defendants' units. Plaintiff must produce this document to defendants.
Request No. 12 asks for all photographs related to defendant's license agreement and the prior owner of the unit, and any other modifications granted to any owner under a license agreement. (NYSCEF No. 21 at 15). Plaintiff states that it is not presently in possession of these photographs and objects to produce the photographs on the ground that it is "vague." (NYSCEF No. 22 at 5). Defendants argue that their specific request based on photographs of modifications done under plaintiff's other license agreement is relevant to their claim that defendants were treated disparately by plaintiff based on their race. (NYSCEF No. 30 at 7). The court disagrees. Defendants' broad request fails to specify which photographs it is requesting. Additionally, the request for all relevant photographs is irrelevant to its racial discrimination claim because photographs do not provide the underlying negotiations and agreements the Condominium had with other owners. Plaintiff need not respond further to this request.
Request No. 14 demands "each and every document or communication plaintiff intends to rely upon at trial." (NYSCEF No. 21 at 15). Plaintiff objects to this request on the ground that it is "vague, overbroad, and palpably improper." (NYSCEF No. 22 at 6). Defendants argue that these documents are "germane to litigation" and that "defendants have a right to inspect those documents before deposing plaintiff." (NYSCEF No. 30 at 7). The court agrees with plaintiff. Plaintiff need not identify all of the documents it intends to rely upon at trial before depositions have even been held.
Request for Insurance Information: Upon defendants' request for the Condominium's insurance documents, plaintiff stated that "it is not aware of insurance that would provide indemnification and reimbursement of the counterclaim." (NYSCEF No. 22 at 1). Defendants argue that plaintiff must know its insurance coverage, and that if plaintiff did not, it could retrieve this information from its insurance brokers and managers, who certainly knew. (NYSCEF No. 30 at 4-5). This court agrees with defendants. As with the request for a calculation of restoration damages, the insurance coverage that could cover defendants' counterclaim is necessary for defendants to assess their claim; and is information that plaintiff should either have already or be able to retrieve easily. Plaintiff must provide defendants with the requested insurance documentation.
Accordingly, for the foregoing reasons it is
ORDERED that the branch of defendants' motion seeking under CPLR 3126 to strike plaintiff's complaint is denied; and it is further
ORDERED that the branch of defendants' motion seeking under CPLR 3124 to compel plaintiff to provide supplemental responses to defendants' first set of interrogatories, request for insurance information, and first set of document demands is granted in part and denied in part as set forth above; and it is further
ORDERED that plaintiff shall produce the supplemental discovery responses directed above within 30 days of entry of this order, except as to Document Request No. 10, for which the parties shall proceed as set forth above in this court's determination on that request.