Opinion
No. 828/2012.
2013-02-7
VILLAGE DRIVE ASSOCIATES, LLC, Plaintiff, v. Louis P. SCHIAVO a/k/a Louis Schiavo a/k/a L Schiavo, Defendant.
James T. Hunt, Jr., Esq., Slater, Tenaglia, Fritz & Hunt, P.A., New York, Attorneys for Plaintiff. Karen M. Riggio, Esq., New York, Attorney for Defendant.
James T. Hunt, Jr., Esq., Slater, Tenaglia, Fritz & Hunt, P.A., New York, Attorneys for Plaintiff. Karen M. Riggio, Esq., New York, Attorney for Defendant.
JAMES D. PAGONES, J.
The plaintiff moves for an order pursuant to CPLR R3212 granting it summary judgment against the defendant. The plaintiff also separately moves for an order pursuant to CPLR § 3126 striking the defendant's pleadings for failure to comply with outstanding discovery demands or, in the alternative, an order pursuant to CPLR § 3124 compelling the defendant to respond fully to plaintiff's discovery demands within 10 days from receipt of an order. The defendant opposes the instant application for summary judgment. No opposition has been submitted to the plaintiff's application for an order pursuant to CPLR §§ 3126 and 3124. For the foregoing reasons, it is ordered that the plaintiff's motions for summary judgment and for an order pursuant to CPLR § 3126 are denied. The plaintiff's motion for an order compelling the defendant to respond to the plaintiff's outstanding discovery is granted.
The above action began with the plaintiff's filing of its summons and verified complaint with the Court on February 10, 2012, seeking recovery of $30,360.20 in unpaid charges allegedly incurred by the defendant for the price of goods sold and delivered and/or services rendered. The plaintiff claims that the defendant is personally liable for the debts of his company, Northern Energy Corp (“NEC”). The defendant appeared in this action on or about March 21, 2012 by serving a verified answer.
On or about March 28, 2012, the plaintiff served its demand for production of documents and interrogatories on the defendant. The plaintiff claims that the defendant failed to respond to any of its discovery demands.
It is well settled that in order “to obtain summary judgment, it is necessary that the movant establish his or her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his or her favor (CPLR 3212[b] ), and he or she must do so by tender of evidentiary proof in admissible form.” (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 1067 [1979].) Parties opposing a motion for summary judgment are obliged to lay bare their evidentiary proof in admissible form in order to show that their allegations are capable of being established at a trial. (Albouyeh v. County of Suffolk, 96 A.D.2d 543, 465 N.Y.S.2d 50 [2d Dept.1983] aff'd62 N.Y.2d 681 [1984].) Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient. (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980].)
Here, plaintiff failed to meet the prima facie burden required for summary judgment, as the loan documents, including the purported personal guarantee executed by the defendant, were not submitted in the original instance, but rather in the reply. When a plaintiff seeks to cure a deficiency of its proof by submitting documents to that effect in its reply papers, the “court will not consider this evidence as it is improperly submitted for the first time in the reply.” Rutgers Cas. Ins. Co. v. Orozco, 2011 N.Y. Slip Op 31713[U], 2011 N.Y. Misc. LEXIS 3091, 8–9 (N.Y. Misc.2011). Furthermore:
The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds [for evidence] for the motion. This rule is generally employed in the context of summary judgment motions to prevent a movant from remedying basic deficiencies in its prima facie showing by submitting evidence in reply, thereby shifting to the non-moving party the burden of demonstrating the existence of a triable issue of fact at the time when that party has neither the obligation nor opportunity to respond. (Kennedy v. Mobus, Realty Holdings LLC, 33 A.D.3d 380, 381, 822 N.Y.S.2d 264 [1st Dep't 2006].)Although the plaintiff asserts that it was not in possession of the necessary loan documents at the time its motion was initially filed, the plaintiff has failed to offer any justification for its decision to bring the deficient motion in the first instance. The court notes that the note of issue has yet to be filed and, as such, the plaintiff was under no statutory time constraints to make its initial application.
Because the plaintiff failed to meet its prima facie burden, the court need not consider the sufficiency to the defendant's opposition. (Walden Woods Homeowners' Assn. v. Friedman, 36 A.D.3d 691, 692, 828 N.Y.S.2d 188 [2nd Dept.2007].)
With respect to plaintiff's CPLR § 3126 motion, in order to invoke the drastic remedy of preclusion for failure to disclose pursuant to CPLR § 3126, the court “must determine that the offending party's lack of cooperation with disclosure was willful, deliberate and contemptuous.” (Assael v. Metro. Transit Auth., 4 A.D.3d 443, 772 N.Y.S.2d 364 [2nd Dept.2004].)
Here, while the defendant has failed to respond to the plaintiff's outstanding discovery demands despite the plaintiff's good faith efforts, the plaintiff has failed to establish the defendant's conduct was willful, deliberate and contemptuous. Therefore, it is ordered that the plaintiff's motion to strike the defendant's answer is denied. The plaintiff's motion to compel the defendant's response to the outstanding discovery demands is granted and the defendant is directed to respond without objection to each and every outstanding discovery demand within thirty (30) days of the service of a copy of the decision with notice of entry.
Therefore, it is ordered that the plaintiff's motion for summary judgment and for an order striking the defendant's answer are denied. Plaintiff's motion for an order compelling the defendant to respond to the outstanding discovery demands is granted.
The Court read and considered the following documents upon this application:
PAGES NUMBERED
+-------------------------------------------------------+ ¦1. Notice of Motion ¦1–2¦ +---------------------------------------------------+---¦ ¦Affirmation–Hunt ¦1–7¦ +---------------------------------------------------+---¦ ¦Exhibits ¦A–D¦ +---------------------------------------------------+---¦ ¦2. Notice of Motion ¦1–2¦ +---------------------------------------------------+---¦ ¦Affirmation–Berschadsky ¦1–5¦ +---------------------------------------------------+---¦ ¦Exhibits ¦A–J¦ +---------------------------------------------------+---¦ ¦Memorandum of Law ¦1–8¦ +---------------------------------------------------+---¦ ¦3. Affidavit in Opposition–Louis Schiavo ¦1–4¦ +---------------------------------------------------+---¦ ¦Exhibits ¦1–2¦ +---------------------------------------------------+---¦ ¦Memorandum of Law ¦1–6¦ +---------------------------------------------------+---¦ ¦4. Reply Affirmation–Hunt ¦1–2¦ +---------------------------------------------------+---¦ ¦Exhibits ¦A–G¦ +---------------------------------------------------+---¦ ¦5. Memorandum of Law ¦1–5¦ +---------------------------------------------------+---¦ ¦Sur–Reply
Affidavit in Opposition–Louis Schiavo¦1–5¦ +-------------------------------------------------------+
Although there is no provision in the CPLR for a sur-reply submission, this document was considered in the interest of justice.
The foregoing constitutes the decision and order of the Court.