Opinion
Index No. 12858/09 Mot. Seq. # 02
12-05-2011
JD REINFORCING SUPPLY INC., Plaintiffs, v. RCS CONSTRUCTION, LLC, Defendants.
Attorney for Plaintiff Kushnick & Associates, PC Attorney for Defendant Krol & O'Connor
SHORT FORM ORDER
PRESENT: HON. JEFFREY S. BROWN
JUSTICE
+-----------------------------------------------------------------------------+ ¦The following papers were read on this motion: ¦Papers Numbered¦ +-------------------------------------------------------------+---------------¦ ¦Notice of Motion, Affidavits (Affirmations), Exhibits Annexed¦1,3 ¦ +-------------------------------------------------------------+---------------¦ ¦Answering Affidavit ¦2 ¦ +-------------------------------------------------------------+---------------¦ ¦Reply ¦4 ¦ +-------------------------------------------------------------+---------------¦ ¦Memorandum of Law ¦5 ¦ +-----------------------------------------------------------------------------+
Defendant moves by notice of motion for the following relief: an order pursuant to CPLR 3126 and 3212, precluding plaintiff from introducing any evidence at trial on the grounds that plaintiff failed to comply with this court's orders; and an order dismissing the complaint herein.
On or about December 16, 2008, defendant RCS Construction LLC, (hereinafter "RCS") opened a credit account with plaintiff JD Reinforcing Supply Inc., (hereinafter "JD") whereby plaintiff agreed to sell and defendant agreed to purchase rebar as requested by defendant. Plaintiff states that from on or about December 29, 2008 through on or about February 4, 2009, plaintiff did sell and defendant did buy rebar. Defendant allegedly accepted delivery of the products without objection and currently owes plaintiff the sum of $78,568.61. Plaintiff allegedly repeatedly demanded payment from defendant but defendant refused to make payment, thus, the instant action was commenced.
Plaintiff claims that defendant owes on six invoices that collectively add up to the above stated sum; that for each of the six referenced invoices, plaintiff has submitted a copy of the bill of lading that was sent to defendant and a copy of the bill of lading from the steel mill that produces the rebar and actually delivered the materials to the defendant.
On April 7, 2010, a compliance conference was held and the court issued a compliance order relating to the outstanding discovery (Brown, J.). The order specified that defendant was to provide a supplemental notice for discovery and inspection and plaintiff was to produce documents responsive thereto, or, in the event that those documents do not exist, to provide a sworn statement to that effect. On or about April 18, 2011 defendant served upon plaintiff a copy of the supplemental discovery demands.
On June 15, 2011, the court held a certification conference whereby the case was certified (Brown, J.). The parties entered into a side stipulation which was not so-ordered by this court agreeing that "[p]laintiff shall provide an affidavit as to the non-existence of documents requested in the order of 4/7/11 and in the defendant's supplemental notice of discovery and inspection dated 4/18/2100, listing such documents with specificity. Such affidavit to be provided by 7/1/11." The court notes prior to both sides entering into this side stipulation, neither side brought any discovery related motions.
Plaintiff filed a Note of issue on June 17, 2011. Thereafter, on or about July 18, 2011, plaintiff served an affidavit of Joseph Rivera, principal of JD, stating, inter alia, that responsive documents requested in the supplemental discovery demand were not in possession of the plaintiff. The court notes that this response was over two weeks after the parties entered into a side stipulation at the certification conference and over three months after this court's order of April 7,2011.
Defendant moves to preclude plaintiff's testimony and dismiss the action based on plaintiff's non-compliance with this court's discovery orders as evidenced by Mr. Rivera's affidavit. For example, instead of stating that responsive documents did not exist, Rivera stated that JD "no longer" had them and that the documents were in the possession of the bankruptcy trustee. Defendant states that he made another good faith attempt to resolve the issue with plaintiff to no avail.
Defendant argues that by filing the Note of issue first, and only then disclosing, belatedly, the supposed whereabouts of the documents, JD not only defied this court's order, but also frustrated RCS' ability to timely move to strike the Note of issue and to pursue the requisite documents in the possession of the bankruptcy trustee. Thus, plaintiff thwarted discovery in 2011 of the bills of lading in JD's possession since at least March 2010.
Plaintiff opposes the application arguing that it has repeatedly provided uncontroverted evidence that the rebar that it shipped to defendant was ordered by plaintiff from plaintiff's supplier and paid for by the plaintiff.
Plaintiff argues that the defendant failed to produce any act or omission by the plaintiff that warrants preclusion of evidence; that plaintiff did, in fact, comply with discovery thereby negating preclusion. Additionally, preclusion is not warranted because plaintiff did not deliberately or willfully disregard discovery. Defendant argues that a delay in providing an affidavit does not equate to a pattern of failing to comply, and therefore, may not be deemed willful or deliberate. Furthermore, defendant is not entitled to a preclusion sanction where there is no showing of a pattern of contumacious conduct.
Plaintiff additionally argues that the application to dismiss the complaint must be denied given the fact that a preclusion of evidence is unwarranted. Plaintiff asserts that there is no showing that its conduct is willful or contumacious. It would be inequitable and unjust to grant such drastic relief on this record.
Based on the foregoing, the decision of the court is as follows:
In the case at bar, defendants failed to move to vacate the Note of issue and Certificate of Readiness within the statutory time period.
NYCRR 202.21(e) states in pertinent part:
"Vacating note of issue. Within 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect.... After such period, except in a tax assessment review proceeding, no such motion shall be allowed except for good cause shown."
Given the fact that a note of issue was filed on June 17, 2011, defendant had until July 7, 2011 to move to strike the note of issue. Plaintiff agreed, upon stipulation by both parties, to provide the additional discovery by July 1, 2011. Since plaintiff failed to abide by the stipulation by July 1, 2011, defendant had time to move to strike the note of issue. Since defendant failed to move for such relief within the time proscribed by statute, it is precluded from requesting such relief absent good cause shown. Instead defendant brings the instant application for preclusion.
"The nature and degree of the penalty to be imposed pursuant to CPLR 3126 for failure to comply with discovery demands and orders is within the trial court's discretion (see, CPLR 3126; Garcia v Kraniotakis, 232 AD2d 369; Schoffel v Velez, 118 AD2d 492). The penalty of preclusion is extreme and should be imposed only when the failure to comply with a disclosure order is the result of willful, deliberate, and contumacious conduct or its equivalent (see, Halley v Winnicki, 255 AD2d 489; Garcia v Kraniotakis, supra; Vatel v City of New York, 208 AD2d 524)." Brown v. United Christian Evangelistic Ass'n, 270 A.D.2d 378, 379 (2d Dep't 2000).
In the court's discretion, it finds that plaintiff's delay in providing the requested discovery does not rise to the level of willful, deliberate, and contumacious conduct or its equivalent. Plaintiff's delay in providing the requested disclosure does not equate to a pattern of failing to comply with court-ordered discovery. On April 7, 2011, this court ordered defendant to serve a supplemental discovery demand within 15 days. Defendant complied by serving the supplemental demand on April 18, 2011. On the certification date of June 15, 2011, plaintiff had not yet complied with this demand. The court did not issue another order but the parties stipulated between themselves as to the course of discovery post-certification. On July 18, 2011, plaintiff responded to defendant's demand.
Plaintiff was in compliance with this court's direction to file the note of issue within the proscribed time frame. If it was defendant's position that the case was not ready for trial because discovery was not complete as of the date plaintiff filed the note of issue, it should have moved to strike the note of issue and certificate of readiness within the statutory time frame. "The filing of a note of issue or a demand for such filing is tantamount to asserting that all pretrial proceedings have been completed and that the case is in a trial posture. Once the statement of readiness has been filed 'each party to the action is deemed to have assented to the statements contained therein and to have waived his right to pursue [discovery] proceedings' (Cerrone v S'Doia, 11 AD2d 350, 352; see, also, Niagara Falls Urban Renewal Agency v Pomeroy Real Estate Corp., 74 AD2d 734, app dsmd 50 NY2d 842; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3216:27, p 934)." Siragusa v. Teal's Express, Inc., 96 A.D.2d 749, 750 (N.Y. App. Div. 4th Dep't 1983)
Accordingly, it is
ORDERED, that the application is DENIED in its entirety.
This constitutes the decision and order of this Court. All applications not specifically addressed herein are denied. Dated: Mineola, New York
November 28, 2011
ENTER:
HON JEFFREY S. BROWN
J.S.C.
Attorney for Plaintiff
Kushnick & Associates, PC
Attorney for Defendant
Krol & O'Connor