Opinion
Index 611937-2016
06-01-2020
ALAN WUNDERLICH, Plaintiff, v. LIBERTY MEADOWS, LLC, DEMETRIUS TSUNIS & ENRICO SCARDA, Defendants THE HOWARD O. WUNDERLICH REVOCABLE LIVING TRUST, THE ADELINE E. WUNDERLICH REVOCABLE LIVING TRUST & ADELINE E. WUNDERLICH Nominal Defendants. Mot Seq No. 007 - Mot D; RTC
PLAINTIFF'S COUNSEL: Law Offices of James A. Preštiano PC DEFENDANT'S COUNSEL: Esseks Hefter Angel DiTalia Pasca LLP
Unpublished Opinion
Motion Submit Date: 02/27/20
Mot Conf Held: 06/25/19
PLAINTIFF'S COUNSEL: Law Offices of James A. Preštiano PC
DEFENDANT'S COUNSEL: Esseks Hefter Angel DiTalia Pasca LLP
HON. WILLIAM G. FORD, JUSTICE.
In this electronically filed action, on plaintiffs motion to strike defendants' answer or in the alternative to compel discovery, the Court considered the following papers: NYCEF Docs. Nos. 161-180; and upon due deliberation and full consideration of the same; it is
ORDERED that as follows; and it is further
ORDERED that plaintiffs counsel is: hereby directed to serve a copy of this decision and order with notice of entry via electronic filing and electronic mail upon all counsel forthwith; and it is further
ORDERED that, if applicable, within 30 days of the entry of this decision and order that defendant's counsel is also hereby directed to give notice to the Suffolk County Clerk as required by CPER 8019(c) with a copy Of this decision and order and pay any fees should any be required.
The parties and their counsel are presumed knowledgeable of all. the salient and material, facts, and. circumstances underlying this matter, the same having been previously recited in this Court's prior decisions and Orders. In the interest and furtherance of judicial economy, the same will not be reiterated here.
As indicated previously fay this Court in prior decisions, discovery in this matter is on going with depositions of defendants haven completed. That notwithstanding, plaintiff has moved to strike defendants' answer pursuant to CPLR 3126 for failure to produce demanded disclosure, or failing: .that in the alternative to compel defendants' production of the requested discovery pursuant to CPLR 3.12J4.
The discovery dispute forming the basis of plaintiffs motion, deals With plaintiffs standing request for the production of certain documents, first requested in June 2017, and supplemented in August 2018, :after defendant Tsunis' and Scarda's depositions in March and May 2018, relating to the corporate dealings of defendant. Liberty Meadows concerning its management of its condominium community. Plaintiff, having learned new information concerning Tsunis and Scarda's corporate affairs in Liberty Meadows, bank, borrowing and governance of the company, and relationship with a purchaser of a specific condo unit in the community which plaintiff, contends should have been sold to him, sought production of documents such as the purchase agreement for that unit, emails and other correspondence and bank lending information for the company. Counsel for the parties agreed, to meet and confer to devise search terms for Scarda and Tsunis to employ in their diligent search for responsive documentation. Defendants made voluminous production of documents alleged to be responsive, but plaintiff maintains that much of if is repetitive. Further plaintiff maintains that still outstanding is any documentation pertaining to the subsequent sale: and conveyance of the condo unit plaintiff seeks to have specifically conveyed to him. Therefore, plaintiff seeks discovery sanctions or an order to compel, in addition to a binding representation of the defendants that the requested documentation does not exist.
Defendants oppose plaintiff's motion primarily on formalistic grounds. First they argue that a promotion conference required by this Court's rules was not held. However, counsel, for both parties appeared and conferenced this matter on June 25, 2019, rendering that argument hollow. Next defendants complain that, plaintiff's application lacks a proper affirmation of good faith rendering it fatally defective, This contention too is unsuccessful, where as here, the matter was the Proper subject of a subsequent court conference, negotiated stipulation between counsel and the application itself contains evidence in writing of counsels' attempt, to meet arid confer to reach a resolution of the discovery impasse. Lastly, defendants contend that the sanction of striking a pleading- is unwarranted here as too strict a penalty absent a prior conditional order. Moreover, defendants maintain that they have objected to plaintiff s discovery demands as burdensome, overbroad and seeking irrelevant information, In response, plaintiff-notes that this is the second such motion he has had to make to compel, discovery, warranting some heightened relief. Additionally, plaintiff argues that many, if not all of defendants' objections are waived, having not been made timely on receipt of plaintiff's demands.
CPLR 3101(a) broadly mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action." This provision is liberally interpreted in favor of disclosure (see Kavanagh v. Ogden Allied Maintenance Corp., 92 N.Y.2d 952, 954; Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406; Matter of Skolinsky, 70 A.D.3d 845, 892 N.Y.S.2d 913; Riverside Capital Advisors, hie v. First Secured Capital Corp., 292 A.D.2d 515, 739 N.Y.S.2d 281; Ural v Encompass Ins. Co. of Am., 97 A.D.3d. 562, 566, 948 N.Y.S.2d 621, 625-26 [2d Dept 2012]).
It is well settled that a trial court is vested with broad discretion to supervise the discovery process, and its determinations in that respect will not be disturbed in the absence of demonstrated abuse (see United Airlines v. Ogden New York Servs., 305 A.D.2d 239, 240, 761 N.Y.S.2d 16; Clio v. 401+403 57th St. Realty Corp., 300 A.D.2d 174, 176, 752 N.Y.S.2d 55); Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 1 A.D.3d 223, 224, 767 N.Y.S.2d. 228 [1st Dept, 2003]). However, the courts, on the other hand recognized that "parties to a civil dispute are free to chart their own. litigation course and, in so doing, they may stipulate away statutory, and even constitutional rights'" (Astudillo v MV Transp., Inc., 136 .A.D.3d 721, 721, 25 N.Y.S.3d 289, 290 [2d Dept 2016]). Thujs, it has often been said that for "the. credibility of court orders and the integrity of bur judicial system are to be maintained, a litigant cannot ignore court orders with impunity" (Jones v LeFrance Leasing Ltd. Partnership, 110 A.D.3d .1032, 1033, 973 N.Y.S.2d 798, 800 [2d Dept 2013]), The test to be employed by the Supreme Court when determining discovery issues is one based on usefulness and reason (see Andon v. 302-304 Mott St Assoc., 94 N.Y.2d 740, 746, 709 NY&2d 873). However, discovery demands which are unduly burdensome, lack specificity, or seek privileged and/or irrelevant information areimproper and will be vacated (see Board of Mgrs. of the Pari Regent Condominium v. Park Regent Assoc., 78 A.D.3d 752, 753, 910 N.Y.S.2d 654;.Bell v. Cobble Hill Health Ctr., Inc., 22 A.D.3d 620, 621, 804 N.Y.S.2d 362; Lopez v. Huntington Autohaus, 150 A.D.2d 351, 352, 540 N.Y.S.2d 874; H.R. Prince, Inc. v. Elite Envtl. Sys., Inc., 107 A.D.3d 850, 850, 968 N.Y.S.2d 122, 123-24 [2d Dept 2013]).
The words 'material and necessary', as used in section 3101 must 'be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues arid reducing delay and prolixity.'" Discovery is hot unlimited, however, and the supervision, of discovery is generally left to the broad discretion of the trial court. At tie same time a party is "not entitled to unlimited, uncontrolled, unfettered disclosure" (Quinones v 9 E. 69th Sit, LLC, 132 A.D.3d 750, 750, 18 N.Y.S.3d 106, 107-08 [2d Dept 2015]). Accordingly, the supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination: will not be disturbed'' (Gould v Decolator, 131 A.D.3d 445, 446-47, 15 N.Y.S.3d 138, 140 [2d Dept 2015][internal citations omitted]):
It is incumbent on the party seeking disclosure to demonstrate that the method, of discovery, sought will result in. the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" (Crazytown Furniture v. Brooklyn Union Gas Co., 150 A.D.2d 420, 421, 541 N.Y.S.2d 30; see Seigel, N.Y. Prac. § 345; CPLR 3101[a]; Herbst v. Bruhn, 106 A.D.2d 546, 483 N.Y.S.2d 363; Andon v. 302-304 Mott St. Assocs., 94 N.Y.2d 740, 746, 709 N.Y.S.2d 873; Palermo Mason Constr. v. AARK Holding Corp., 300 A.D.2d 460, 751 N.Y.S.2d 599; Vyas v Campbell, 4 A.D.3d 417, 418, 771 N.Y.S.2d 375, 376 [2d Dept 2004]).
A motion to compel discovery under CPLR 3124 should be denied where the document demands are overly broad, vexatious,, and tend to confuse, rather than sharpen, the central issue of negligence (Brandes v N. Shore Univ. Hosp., 1 A.D.3d 550, :551, 767 N.Y.S.2d 666, 667.[2d Dept 2003]). More importantly, where discovery requests are numerous, the court will not prune the requests even though some of them may be proper (Change v. SDI Intern., Inc., 15 A.D.3d. 520, 521, 789 NY S2d 892, 893. [2d Dept 2005]).
Generally, "public policy strongly favors the resolution of actions on the merits whenever possible, the striking of a party's pleading is a drastic remedy which is warranted only where there has been a clear showing that the failure to comply with discovery is willful and contumacious" (Desiderio v Geico Gen. Ins. Co., 153 AD3.d 1322, 1322, 61 N YS3.d 309, 311 [2d Dept 2017]). On an application seeking striking of a party's pleading for refusal to comply with a court's discovery order movant bears the burden of making a "clear showing" that the failure to comply was willful and contumacious (Singer v Riskiil, 137 A.D.3d 999, 100.1,, 27 N.Y.S.3d.209, 211-12 [2d Dept2016] [internal citations omitted]). Therefore, the drastic remedy of striking a pleading is warranted, where a party's failure to comply with court-ordered disclosure is willful and contumacious (Mangtu v Schering Corp., 90 A.D.3d 621, .622, 933 N.Y.S.2d 897 [2d Dept 2011]). Such a determination of whether to strike a pleading lies within, the sound discretion of the trial court (JPMorgan Chase Bank, N.A. v New York State Dept of Motor Vehicles, 119 A.D.3d 903, . 903, 990 NY S2d 577, 578 [2d Dept 2014]).
A party's refusal "to obey an order for disclosure or willfully fail[ure] to disclose information, which the court finds ought to have been disclosed ... the court may... strik[e] out pleadings.... or. Dismiss[ ] the action... or render[ ] a judgment by default against the disobedient party" (CPLR 3126[3]). "Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered .discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time (Honghui Kuang v MetLife, 159 A.D.3d878, 881, 74 NY S3d 88, 92 [2d Dept 2018]).
The failure to. comply with deadlines and provide, good-faith responses to discovery demands "impairs the efficient functioning of the courts and the adjudication of claims." The Court of Appeals has also pointed out that "[c]hronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice. Law and Rules" and has also remarked that "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity (Arpino v FJ.F. & Sons Elec. Co., Inc., 102 A.D.3d 201, 207, 959 N.Y.S.2d 74, 79 [2d Dept 2012]):
The nature arid degree of the penalty to be imposed pursuant, to CPLS..3126 is a matter within the discretion of the trial court (Estaba v Quow, 101 A.D.3d 940, 940-41, 956 N.Y.S.2d 143, 144 [2d Dept 2012]). The. drastic remedy of striking an answer is not appropriate, absent a clear showing that the failure to comply with discovery demands was willful or contumacious, (JPMorgan Chase Bank, v New York State Dept. of Motor Vehicles, 119 A.D.3d 903, 903, 990 N.Y.S.2d 577, 578-79 [2d Dept 2014]).
It, is clear that the willful and contumacious nature of a party's conduct may properly be inferred from repeated, delays in complying with the plaintiffs discovery demands and the Supreme Court's discovery schedule, the failure to provide an adequate excuse for such delays, and the proffer of inadequate discovery responses, which otherwise evince a lack of a good-faith effort to address the. requests meaningfully (Studer v Newpointe Estates Condominium, 15 2A.D.3d 555, 557, 58 N.Y.S.3d 5091-512 [2dDept 2017]; Henry v Datson, 140 A.D.3d 1120, 1.122, 35 N.Y.S.3d 383, 385 [2d Dept 2016] Stone v Zinoukhova, 1.19 A.D.3d 928, 929, 990 N.Y.S.2d 567, 568 [2d Dept 2014]).
The Second Department has that part compliance with discovery requests maybe sufficient to prevent preclusion or striking of pleadings noting that substantial compliance "with outstanding discovery requests, and [the inability to] to produce certain documents because they did not exist or were not in its possession" militates against granting an application to strike a defendant's answer (Maffai v County of Suffolk, 36 A.D.3d 765, 766, 829 N.Y.S.2d 566, 567 [2d Dept 2007]: see also Euro-Cent. Corp. v Dalsimer, Inc., 22 A.D.3d 793, 794, 803 N.Y.S.2d 171, 173 [2d Dept 2005] [response:to plaintiffs notice for discovery and inspection asserting that the documents requested by the plaintiff do not exist, are not in his possession, or cannot be located suffices since defendant cannot be compelled, to produce documents which do not exist or are not in his possession]; Sparks Assoc, LLC v N. Hills Holding Co. II, LLC, 14 A.D.3d 1183, 1184, 904 N.Y.S.2d 157, 158. [2d Dept 2010] [motion Court providently exercised its discretion in denying motion to strike pleadings or to preclude offer of evidence at time of trial where defendant adequately established the documents sought by the either were already produced or were represented not to exist]), It is settled that defendants' failure to timely challenge the plaintiffs discovery demand forecloses inquiry into the propriety of the information sought except with regard to his requests that sought privileged information,, or as to requests which Were palpably improper (Jordan v City of New York, 137 A.D.3d 1084, 1084, 27 N.Y.S.3d 65.6, 657 [2d Dept 2016]; Fausto v City of New York, 17 A.D.3d 520, 522, 7.93 N.Y.S.2d 165, 167 [2d Dept 2005]).
Here, the record presented by counsel, on the motion amply supports granting of plaintiffs motion in part. Plaintiff first requested documentation, which defendant first objected to as overload, irrelevant, and burdensome.. Subject to those objections, defendants served responsive documents. Depositions occurred and at those proceedings plaintiffs counsel learned new information leading to further document requests, which defense counsel took under advisement and requested that they be put into writing. Plaintiff s counsel did so. Counsel conferred as evidence by emails between the two attorneys in February 2019 to reach some sort of agreement or compromise over search terms defendants Tsunis and Scarda would employ to identify responsive documents. Defendants complied as further evidenced by their, sworn .affidavits. Defense counsel then sent over the Alleged responsive production. Plaintiff may be correct that many of these documents were duplicative of prior production. However, despite delay, it cannot be objectively said that defendants have deliberately "stonewalled" plaintiffs in review of the present record. Accordingly that branch, of plaintiffs motion to strike, defendants' answers for willful and contumacious refusal to provide demanded discovery is denied.
Missing however from the motion record is any binding representation from the defendants that the requested documentation, particularly the contract of sale for Unit 30 of the Liberty Meadows condominium community, and other ancillary requested corporate records of Liberty Meadows, do not exist in the form or format plaintiff has demanded; While both individual defendants have sworn by affidavit as to their conduct of a diligent search, plaintiff arid the Court is left to. guess as to the proper inference to be drawn from the fact that a search has occurred, and documents have still not beer produced this far into the discovery phase of this matter. Therefore, that branch of plaintiff s motion to compel discovery concerning these outstanding items of document production is granted. Defendants are directed to conduct a diligent search and produce the demanded documents, or in the event they, do not exist, to so state in a sworn affidavit.
Accordingly, this Court grants plaintiff s application to compel the following manner:
It is
ORDERED that defendants Liberty. Meadows, Demetrius Tsunis. & Enrico Scarda are: directed to plaintiff's supplemental request for discovery & inspection and provide the material demanded as cited above within 30 days of the receipt of this order with notice of entry; and it is further
ORDERED that in the event that defendants fail to provide all outstanding discovery as cited above by that date, this Order shall be deemed self-executing and defendant's answer shall be deemed stricken for willful and contumacious refusal to provide, discovery, and abide/this Court's orders pursuant to CPLR 3126 without further need of motion practice on plaintiffs part; and it is further
ORDERED that no further extensions or time or adjournments in the prosecution of this matter shall be granted by of among counsel absent leave of this Court on good cause shown; and it is further
ORDERED that counsel are hereby directed to appear "before this Court remotely via teleconference and/or Skype for the purposes of a discovery compliance conference on Wednesday, October 7, 2020 for counsel to report the status of the remaining, and outstanding discovery preventing certification of this matter as ready for trial.
The foregoing constitutes the decision and order of this Court.