| Yargeau v Lasertron |
| 2010 NY Slip Op 05109 [74 AD3d 1805] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| Alice Yargeau et al., Respondents, v Lasertron, Appellant. (AppealNo. 2.) |
—[*1] Cantor, Lukasik, Dolce & Panepinto, P.C., Buffalo (Stephen C. Halpern of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), enteredOctober 7, 2009 in a personal injury action. The order, insofar as appealed from, uponreconsideration denied the motion of defendant for partial summary judgment and granted themotion of plaintiffs to compel disclosure.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying plaintiffs' motion and vacating the fourth ordering paragraph and as modified the orderis affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byAlice Yargeau (plaintiff) while playing the "Cyber Sport" game at defendant's entertainmentfacility. According to plaintiffs, the "Cyber Car" in which plaintiff was seated was rear-ended byanother Cyber Car, and they asserted causes of action for negligence, breach of warranty andstrict products liability.
Plaintiffs made discovery demands in February 2009, April 2009 and May 2009 to whichdefendant responded on May 26, 2009. Plaintiffs thereafter moved to compel defendant toproduce documents requested in their earlier demands. Specifically, plaintiffs contended thatdefendant should be required to produce documents concerning the design and manufacture ofthe Cyber Car. Defendant alleged, however, that it did not have such information because theCyber Car was designed and manufactured by another corporation over which defendant had nocontrol.
We conclude that Supreme Court erred in granting plaintiffs' motion, and we thereforemodify the order accordingly. We agree with defendant that plaintiffs failed to comply with 22NYCRR 202.7 (a). Pursuant to that regulation, a movant seeking to compel disclosure is requiredto serve and file "an affirmation that counsel has conferred with counsel for the opposing party ina good faith effort to resolve the issues raised by the motion." (§ 202.7 [a].) "Theaffirmation of the good faith effort 'shall indicate the [*2]time,place and nature of the consultation and the issues discussed and any resolutions' " (Amherst Synagogue v Schuele Paint Co.,Inc., 30 AD3d 1055, 1057 [2006], quoting 22 NYCRR 202.7 [c]). It is well establishedthat the failure to file that affirmation or a deficiency in that affirmation may justify denial of amotion to compel (see Natoli vMilazzo, 65 AD3d 1309, 1310-1311 [2009]; Kane v Shapiro, Rosenbaum, Liebschutz, & Nelson, L.L.P., 57 AD3d1513 [2008]; Amherst Synagogue, 30 AD3d at 1056-1057). The failure to includethe good faith affirmation may be excused, however, where "any effort to resolve the presentdispute non-judicially would have been 'futile' " (Carrasquillo v Netsloh Realty Corp.,279 AD2d 334, 334 [2001]; seeDiamond State Ins. Co. v Utica First Ins. Co., 67 AD3d 613 [2009]; Qian vDugan, 256 AD2d 782, 782-783 [1998]). In Carrasquillo, the Court determined thatsuch efforts would have been futile "[u]nder the unique circumstances of [that] case and in lightof the frequency with which both sides have resorted to judicial intervention in discoverydisputes in the three years prior to the instant motion" (279 AD2d at 334). In Diamond StateIns. Co., the effort was deemed futile "in light of [the] defendant's multiple delays andviolations of repeated court orders, its numerous improper objections to practically everydemand for disclosure made by [the] plaintiff, its unjustifiable limitation of the search of its files,its continued refusal to produce responsive documents and its utter failure to account for itsbehavior" (67 AD3d at 613). In Qian, any effort would have been futile because,"[d]espite having been made aware of the ways in which [the] defendant viewed the profferedsummary of [the] testimony [in question] as incomplete, [the] plaintiff still made no attempt toredress [those] defects prior to trial" (256 AD2d at 782).Under the circumstances of this case, however, we cannot conclude that plaintiffs' effortswould have been futile. The affirmation of plaintiffs' attorney established that plaintiffs made agood faith effort to obtain the initial responses from defendant, but it did not establish that theyhad made any good faith effort to resolve the "present dispute," i.e., the alleged inadequacy ofdefendant's responses (Carrasquillo, 279 AD2d at 334). Indeed, this is not a case wherethere had been multiple disputes or defendant had continuously refused to respond.Present—Martoche, J.P., Smith, Centra, Sconiers and Pine, JJ.