Opinion
2021–03804 Index No. 503777/19
05-31-2023
Svetlana ANUCHINA, appellant, v. MARINE TRANSPORT LOGISTICS, INC., et al., respondents.
Law Office of Eduardo Glas, P.C., New York, NY (Eduardo J. Glas of counsel), for appellant. Garry Pogil, New York, NY, for respondents.
Law Office of Eduardo Glas, P.C., New York, NY (Eduardo J. Glas of counsel), for appellant.
Garry Pogil, New York, NY, for respondents.
COLLEEN D. DUFFY, J.P., REINALDO E. RIVERA, LARA J. GENOVESI, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action for declaratory relief, the plaintiff appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated May 3, 2021. The order denied the plaintiff's motion pursuant to CPLR 3126, inter alia, to strike the defendants’ answer. ORDERED that the order is affirmed, with costs.
In February 2019, the plaintiff commenced this action for declaratory relief against the defendant Marine Transport Logistics, Inc., and its president, the defendant Alla Solovyeva. In February 2020, the plaintiff moved to compel the defendants to produce certain documents, including emails. In an order dated September 3, 2020, the Supreme Court, inter alia, directed the defendants, who had previously produced thousands of pages of emails, to either produce all emails or to provide an affidavit attesting to their search efforts pursuant to Jackson v. City of New York , 185 A.D.2d 768, 586 N.Y.S.2d 952. The defendants thereafter produced an affidavit in response to the order, but the plaintiff objected to the affidavit as insufficient. Following a series of emails between the parties’ attorneys, in March 2021, the defendants’ attorney agreed to his adversary's requests and indicated that the defendants would search for additional emails. The plaintiff's attorney noted that he would give the defendants 20 days to provide the materials. The defendants’ attorney subsequently asked the plaintiff's attorney for an extension of approximately one month on the deadline. The defendants’ attorney noted that one of the defendants was experiencing some medical issues and was unable to access her office. The plaintiff's attorney rejected this request and thereafter moved pursuant to CPLR 3126, among other things, to strike the defendants’ answer due to their alleged failure to provide court-ordered discovery. In an order dated May 3, 2021, the court denied the motion, and the plaintiff appeals.
Initially, the Supreme Court incorrectly determined that the plaintiff failed to submit word count certifications with her motion pursuant to the Uniform Civil Rules for the Supreme Court and the County Court ( 22 NYCRR 202.8–b [a], [c]). The record reveals that the plaintiff submitted the required certifications. Even if the plaintiff had failed to do so, the court should have overlooked such a technical defect (see Wetzel v. Systra USA Inc., 2022 N.Y. Slip Op. 33728[U], *2, 2022 WL 16574840 [Sup. Ct., N.Y. County] ; Young v. City of New York, 164 A.D.3d 711, 712–713, 81 N.Y.S.3d 547 ; Macias v. City of Yonkers, 65 A.D.3d 1298, 1299, 885 N.Y.S.2d 613 ).
However, the Supreme Court properly denied the plaintiff's motion due to her attorney's failure to comply with the good faith requirements of 22 NYCRR 202.7. Pursuant to that rule, " ‘a motion relating to disclosure must be accompanied by an affirmation from moving counsel attesting that he or she has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion’ " ( Steele v. Samaritan Found., Inc., 208 A.D.3d 1265, 1267, 175 N.Y.S.3d 110 [alterations omitted], quoting Kemp v. 1000 Broadway, LLC, 203 A.D.3d 1153, 1153, 163 N.Y.S.3d 418 ). The purpose of this rule is "to avoid the unnecessary expenditure of limited judicial resources" in circumstances "where the attorneys for the parties could resolve ... the issues that would be raised in a motion [through constructive dialogue]" ( Nikpour v. City of New York, 179 Misc.2d 928, 930, 686 N.Y.S.2d 920 [Sup. Ct., N.Y. County] ; cf. Capacity Group of NY, LLC v. Duni, 186 A.D.3d 1482, 1483, 131 N.Y.S.3d 373 ). "The affirmation ‘shall indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held’ " ( Winter v. ESRT Empire State Bldg., LLC, 201 A.D.3d 842, 843–844, 161 N.Y.S.3d 314, quoting 22 NYCRR 202.7 [c]). Assuming such good cause does not exist, the affirmation must "refer to ... communications between the parties ... evinc[ing] a diligent effort by the [movant] to resolve the discovery dispute" ( Roye v. Gelberg, 172 A.D.3d 1260, 1263, 101 N.Y.S.3d 444 ). "The good faith efforts may be explained in counsel's primary affirmation submitted in support of the motion or in a separate affirmation that serves specifically to discuss such efforts" ( Steele v. Samaritan Found., Inc., 208 A.D.3d at 1267, 175 N.Y.S.3d 110 ), although the latter is the "better practice" ( Encalada v. Riverside Retail, LLC, 175 A.D.3d 467, 468, 107 N.Y.S.3d 124 ). " ‘Failure to provide [such] an affirmation ... warrants denial of the motion’ " ( Steele v. Samaritan Found., Inc., 208 A.D.3d at 1267, 175 N.Y.S.3d 110, quoting Winter v. ESRT Empire State Bldg., LLC, 201 A.D.3d at 844, 161 N.Y.S.3d 314 ).
Here, the affirmation of the plaintiff's attorney failed to evince a sufficiently diligent effort to resolve the dispute before seeking judicial intervention (see Winter v. ESRT Empire State Bldg., LLC, 201 A.D.3d at 844, 161 N.Y.S.3d 314 ). Moreover, contrary to the plaintiff's contention, the rule was applicable to her motion (see e.g. Steele v. Samaritan Found., Inc., 208 A.D.3d at 1266–1267, 175 N.Y.S.3d 110 ; Bronstein v. Charm City Hous., LLC, 175 A.D.3d 454, 454–455, 106 N.Y.S.3d 331 ).
Accordingly, the Supreme Court properly denied the plaintiff's motion pursuant to CPLR 3126, inter alia, to strike the defendants’ answer.
In light of our determination, we need not reach the plaintiff's remaining contentions.
DUFFY, J.P., RIVERA, GENOVESI and TAYLOR, JJ., concur.