| Javeed v 3619 Realty Corp. |
| 2015 NY Slip Op 05447 [129 AD3d 1029] |
| June 24, 2015 |
| Appellate Division, Second Department |
[*1]
| Ejaz Javeed, an Infant, by His Mother and NaturalGuardian, Tahira Perveen, et al., Appellants, v 3619 Realty Corp. et al.,Defendants, and New Deal Realty Corp. et al., Respondents. |
The Frankel Law Firm, New York, N.Y. (Richard H. Bliss, Michael Stewart Frankel,and Reuven S. Frankel of counsel), for appellants.
Gary Rosen Law Firm, P.C., Great Neck, N.Y., for respondents New Deal RealtyCorp., VMR Builders Corp., Vincent Falcone, Michael Falcone, Robert Bruzzese, MeirMichael Solomon, and Daniel "Dan" McLoud.
Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Marsha E. Harris ofcounsel), for respondents N.Y. Lead Abatement Corp., Yosef "Yossi" Stern, Sheril Stern,and David L. Rogatsky.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from(1) so much of an order of the Supreme Court, Kings County (Knipel, J.), dated March14, 2013, as (a) denied that branch of their motion which was pursuant to CPLR 2221 (a)to modify a previous order of the same court dated July 5, 2012, so as to extend the timewithin which to complete discovery, (b) granted the application of the defendants NewDeal Realty Corp., VMR Builders Corp., Vincent Falcone, Michael Falcone, RobertBruzzese, Meir Michael Solomon, and Daniel "Dan" McLoud to dismiss the complaintpursuant to CPLR 3126 as a sanction for the plaintiffs' failure to comply with thecourt-ordered discovery schedule set forth in the order dated July 5, 2012, and (c) denied,as academic, those branches of their motions and separate cross motion which werepursuant to CPLR 3126, inter alia, to impose sanctions upon the defendants New DealRealty Corp., VMR Builders Corp., Vincent Falcone, Michael Falcone, Robert Bruzzese,Meir Michael Solomon, Daniel "Dan" McLoud, N.Y. Lead Abatement Corp., Yosef"Yossi" Stern, Sheril Stern, and David Rogatsky for failure to comply with certainoutstanding discovery demands and court-ordered discovery and (2) so much of an orderof the same court dated October 18, 2013, as (a) denied that branch of their motion whichwas to vacate so much of the order dated March 14, 2013, as granted the application ofthe defendants New Deal Realty Corp., VMR Builders Corp., Vincent Falcone, MichaelFalcone, Robert Bruzzese, Meir Michael Solomon, and Daniel "Dan" McLoud to dismissthe complaint pursuant to CPLR 3126, and (b), in effect, upon reargument, adhered tothe determinations in the order dated March 14, 2013, denying those branches of theirmotions and cross motion which were pursuant to CPLR 2221 (a) to modify the orderdated July 5, 2012, so as to extend the time within which to complete discovery andpursuant to CPLR 3126, inter alia, to impose sanctions upon the defendants New DealRealty Corp., VMR Builders Corp., Vincent Falcone, Michael Falcone, Robert Bruzzese,Meir Michael Solomon, Daniel "Dan" McLoud, N.Y. Lead [*2]Abatement Corp., Yosef "Yossi" Stern, Sheril Stern, andDavid Rogatsky for failure to comply with certain outstanding discovery demands andcourt-ordered discovery.
Ordered that the appeal from the order dated March 14, 2013, is dismissed, withoutcosts or disbursements; and it is further,
Ordered that the order dated October 18, 2013, is modified, on the facts and in theexercise of discretion, (1) by deleting the provision thereof denying that branch of theplaintiffs' motion which was to vacate so much of the order dated March 14, 2013, asgranted the application of the defendants New Deal Realty Corp., VMR Builders Corp.,Vincent Falcone, Michael Falcone, Robert Bruzzese, Meir Michael Solomon, and Daniel"Dan" McLoud to dismiss the complaint pursuant to CPLR 3126, and substitutingtherefor a provision granting that branch of the plaintiffs' motion and (2) by deleting theprovision thereof, in effect, upon reargument, adhering to the determinations in the orderdated March 14, 2013, denying that branch of the plaintiffs' motion which was pursuantto CPLR 2221 (a) to modify the order dated July 5, 2012, so as to extend the time withinwhich to complete discovery, and substituting therefor a provision, upon reargument,vacating the determination in the order dated March 14, 2013, denying that branch of theplaintiffs' motion, and thereupon granting that branch of the plaintiffs' motion; as somodified, the order dated October 18, 2013, is affirmed insofar as appealed from,without costs or disbursements, and the matter is remitted to the Supreme Court, KingsCounty, to schedule the order of priority with respect to the parties' outstandingdiscovery, and to impose new discovery deadlines applicable thereto, including a newdeadline for the service and filing of the note of issue.
The appeal from so much of the order dated March 14, 2013, as denied, as academic,those branches of the plaintiffs' motions and separate cross motion which were pursuantto CPLR 3126, inter alia, to impose sanctions upon the defendants New Deal RealtyCorp., VMR Builders Corp., Vincent Falcone, Michael Falcone, Robert Bruzzese, MeirMichael Solomon, and Daniel "Dan" McLoud (hereinafter collectively the New Dealdefendants), and N.Y. Lead Abatement Corp., Yosef "Yossi" Stern, Sheril Stern, andDavid Rogatsky (hereinafter collectively the Lead Abatement defendants) for failure tocomply with certain outstanding discovery demands and court-ordered discovery must bedismissed, as those portions of the order were superseded by so much of the order datedOctober 18, 2013, as was made upon reargument. The appeal from the remainingportions of the order dated March 14, 2013, must be dismissed as academic in light ofour determination on the appeal from the order dated October 18, 2013.
In February 2005, the plaintiffs commenced this action against, among others, theNew Deal defendants and the Lead Abatement defendants to recover damages allegedlysustained as a result of exposure to lead paint. The New Deal defendants included themanaging agents of the premises in which the exposure allegedly occurred, as well asseveral entities and individuals with ownership or equity interests in those premises. TheLead Abatement defendants included entities and individuals involved in abating, orattempting to abate, the presence of lead paint at the premises. After a lengthy period ofdiscovery that necessitated numerous instances of court intervention and extensions oftime to file a note of issue, the New Deal defendants, joined in by the Lead Abatementdefendants, moved to dismiss the complaint on the ground that the plaintiffs had failed tocomply with prior discovery orders. In an order dated July 5, 2012, the Supreme Court,inter alia, denied the New Deal defendants' motion, concluding that the record did notdemonstrate that the plaintiffs had "engaged in a pattern of willful and contumaciousdisregard of court orders." The court granted the plaintiffs "one final extension," anddirected that they file a note of issue on or before September 21, 2012.
Pursuant to a notice of motion dated August 20, 2012, the New Deal defendantsmoved to compel the plaintiffs to produce certain discovery materials. The plaintiffscross-moved to strike the answers of both the New Deal defendants and the LeadAbatement defendants on the ground that they failed to adequately respond to certaindiscovery demands. The plaintiffs separately moved pursuant to CPLR 3126 to imposesanctions upon the New Deal defendants and the Lead Abatement defendants for failureto comply with certain outstanding discovery demands and court-ordered discovery, andto modify the order dated July 5, 2012, so as to extend the time within which [*3]to complete discovery. In an attorney's affirmationsubmitted in response to one of the plaintiffs' motions, the New Deal defendants arguedthat the complaint should be dismissed pursuant to CPLR 3126 as a sanction for theplaintiffs' failure to comply with the court-ordered discovery schedule set forth in theorder dated July 5, 2012.
In an order dated March 14, 2013, the Supreme Court denied that branch of theplaintiffs' motion which was to modify the order dated July 5, 2012, so as to extend thetime within which to complete discovery. The court, among other things, granted theapplication of the New Deal defendants to dismiss the complaint pursuant to CPLR 3126as a sanction for the plaintiffs' failure to comply with the court-ordered discoveryschedule set forth in the order dated July 5, 2012, and denied, as academic, thosebranches of the plaintiffs' motions and separate cross motion which were pursuant toCPLR 3126 to impose sanctions upon the New Deal defendants and the Lead Abatementdefendants for failure to comply with certain outstanding discovery demands andcourt-ordered discovery.
The plaintiffs thereafter moved, inter alia, to vacate so much of the order datedMarch 14, 2013, as granted the application of the New Deal defendants to dismiss thecomplaint pursuant to CPLR 3126. The plaintiffs simultaneously moved for leave toreargue those branches of their prior motions and cross motion which were pursuant toCPLR 2221 (a) to modify the order dated July 5, 2012, so as to extend the time withinwhich to complete discovery and pursuant to CPLR 3126 to impose sanctions upon theNew Deal defendants and the Lead Abatement defendants for failure to comply withoutstanding discovery demands and court-ordered discovery.
In an order dated October 18, 2013, the Supreme Court, among other things, ineffect, granted those branches of the plaintiffs' motion which were for leave to reargue.However, in effect, upon reargument, the court adhered to its prior determinations. Inaddition, the court denied that branch of the plaintiffs' motion which was to vacate somuch of the order dated March 14, 2013, as granted the application of the New Dealdefendants to dismiss the complaint pursuant to CPLR 3126.
"The Supreme Court has broad discretion in supervising disclosure and in resolvingdiscovery disputes" (Clarke vClarke, 113 AD3d 646, 646 [2014]; see H.P.S. Mgt. Co., Inc. v St. Paul Surplus Lines Ins. Co., 127AD3d 1018 [2015]). A court may strike a party's pleading or impose some othersanction if the party "refuses to obey an order for disclosure or wilfully fails to discloseinformation which the court finds ought to have been disclosed" (CPLR 3126; see Wolf v Flowers, 122 AD3d728, 728-729 [2014]). However, "[b]efore a court invokes the drastic remedy ofstriking a pleading, or even of precluding evidence, there must be a clear showing thatthe failure to comply with court-ordered discovery was willful and contumacious" (Zakhidov v Boulevard TenantsCorp., 96 AD3d 737, 739 [2012]; see Dimoulas v Roca, 120 AD3d 1293, 1295 [2014]).Although the nature and degree of the penalty to be imposed pursuant to CPLR 3126rests within the discretion of the Supreme Court, the Appellate Division may substituteits own discretion for that of the trial court in such matters, even in the absence of anabuse of that discretion (see Clarke v Clarke, 113 AD3d at 646; Arpino v F.J.F. & Sons Elec.Co., Inc., 102 AD3d 201, 209-210 [2012]).
In the order dated July 5, 2012, the Supreme Court concluded that the plaintiffs'failure to comply with the previous court-ordered discovery schedules was not clearlywillful and contumacious. The record further demonstrates that the plaintiffs' subsequentfailure to comply with the court-ordered discovery schedule set forth in the order datedJuly 5, 2012, was not clearly willful and contumacious. Accordingly, the Supreme Courtshould have granted that branch of the plaintiffs' motion which was to vacate so much ofthe order dated March 14, 2013, as granted the application of the New Deal defendants todismiss the complaint pursuant to CPLR 3126 as a sanction for the plaintiffs' failure tocomply with the court-ordered discovery schedule set forth in the order dated July 5,2012 (see Friedman, Harfenist,Langer & Kraut v Rosenthal, 79 AD3d 798, 801 [2010]; Negro v St. Charles Hosp. &Rehabilitation Ctr., 44 AD3d 727, 728 [2007]; see also Messer v Keyspan EnergyDelivery, Inc., 56 AD3d 738, 738-739 [2008]; O'Neill v Ho, 28 AD3d626, 627 [2006]; Jacobs vMacy's E., Inc., 17 AD3d 318, 320 [2005]).
In effect, upon reargument, the Supreme Court providently adhered to its prior [*4]determinations denying those branches of the plaintiffs'motions and cross motion which were pursuant to CPLR 3126 to impose sanctions uponthe New Deal defendants and the Lead Abatement defendants for failure to comply withoutstanding discovery demands and court-ordered discovery. Contrary to the plaintiffs'contention, they did not clearly demonstrate that any failure by those defendants tocomply with discovery, or any delay in furnishing requested discovery, was willful andcontumacious (see 1523 RealEstate, Inc. v East Atl. Props., LLC, 41 AD3d 567, 568 [2007]).
Since the Supreme Court should have granted that branch of the plaintiffs' motionwhich was to vacate so much of the order dated March 14, 2013, as directed thedismissal of the complaint pursuant to CPLR 3126, the court, in effect, upon reargument,should also have vacated its prior determination denying that branch of the plaintiffs'motion which was to modify the order dated July 5, 2012, so as to extend the time withinwhich to complete discovery, and thereupon granted that branch of the plaintiffs' motion.Under the circumstances of this case, we remit this matter to the Supreme Court, KingsCounty, to schedule the order of priority with respect to the parties' outstanding discoveryand to impose new discovery deadlines applicable thereto, including a new deadline forthe service and filing of a note of issue (see generally Betty v City of New York, 12 AD3d 472, 474[2004]). Skelos, J.P., Leventhal, Austin and Miller, JJ., concur.