Opinion
Index No. 656841/2020 MOTION SEQ. No. 002
02-07-2023
KAIPING HONG-RI GARMENT CO. LTD., Plaintiff, v. LAWRENCE MYRON GOLDFARB, GAIL HELENE GOLDFARB, RUSSELL GOLDFARB, DAVID GOLDBERG, DANI NADEL, THE GOLDFARB FAMILY TRUST, FABRITEX, INC., G18 CORPORATION, LG24 CORP., KIK FASHIONS, INC., BLUE SOCIETY, INC., SOCIETY CLOTHING, INC. Defendants.
Unpublished Opinion
MOTION DATE 01/26/2023
HON. JOEL M. COHEN:, Judge.
DECISION + ORDER ON MOTION
JOEL M. COHEN, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 36, 37, 38, 39, 40, 41,42 were read on this motion to STRIKE ANSWER/COMPEL DISCOVERY
Plaintiff, Kaiping Hong-Ri Garment Co, Ltd ("Plaintiff') moves for an Order (1) Striking the Answer of Lawrence Myron Goldfarb, Russell Goldfarb ("Russell"), Fabritex, Inc, G18 Corporation, Lg24 Corp., Kik Fashions, Inc., Blue Society, Inc. and Society Clothing, INC. ("Defendants"), upon the grounds that Defendants have failed to complete their production of documents; or alternatively, (2) pursuant to CPLR §3124, compelling the Defendants to complete their production of documents within ten (10) days of the date of the Order deciding this motion; and (3) extending the Note of Issue deadline to thirty (30) days after Defendants have completed their production of documents. Defendants have failed to respond to this motion. For the following reasons, Plaintiffs alternative relief is granted.
New York Courts have consistently held that the nature and degree of the penalty to be imposed on a motion pursuant to CPLR § 3126 is within the discretion of the court. Specifically, the Appellate Division has held that "striking an answer is inappropriate absent a clear showing that the failure to comply is willful, contumacious or in bad faith, which must be affirmatively established by the moving party, whereupon the burden shifts to the nonmoving party to establish a reasonable excuse, with appropriate findings to be made by the court" (Palmenta v Columbia Univ., 266 A.D.2d 90, 91 [1st Dept 1999] [internal citations omitted]). However, while not required, many courts have held that a motion to compel pursuant to CPLR 3124 should be made before a motion to strike pursuant to CPLR 3126 (Hutchinson v Betancourt, 2008 NY Slip Op 30078[U] [Sup Ct, NY County 2008] ["Although CPLR 3126 does not explicitly require that a motion to compel be made prior to seeking dismissal, courts have repeatedly held that "[t]he same due process protections in CPLR 3124 should apply when CPLR 3126 is invoked. Given the seriousness of the potential sanctions for discovery noncompliance, notice and an opportunity to be heard are desirable."], quoting Postel v New York Univ. Hosp., 262 A.D.2d 40, 42 [1st Dept 1999]; see also Double Fortune Prop. Inv'rs Corp, v Gordon, 55 A.D.3d 406, 407 [1st Dept 2008] ["Plaintiff having responded to defendant's disco veiy requests, the proper course for defendant, rather than moving to strike the complaint pursuant to CPLR 3126, was first to move to compel further discovery pursuant to CPLR 3124"])
Here, Plaintiff submits that Defendants have failed to respond to Plaintiffs discovery demands. On December 29, 2021, Plaintiff served Defendants with Plaintiffs First Request for the Production of Documents ("Plaintiffs Demands") by serving the same on Defendants' attorney (NYSCEF 38). After counsel for Defendants advised at the parties' preliminary conference that counsel did not receive Plaintiffs Demands, on February 1, 2022, Plaintiff served a courtesy copy of Plaintiffs Demands on Defendants' counsel (NYSCEF 39). Defendants made their initial production on March 23, 2022 but advised that an additional production would be forthcoming (NYSCEF 40).
As evidenced by the various stipulations filed on NYSCEF and correspondence between counsel and the Court, Defendants have ignored the Court's imposed deadlines and failed to complete their production of documents (NYSCEF 41). Specifically, on March 23, 2022, the Court granted Defendants an extension of their document production to April 4, 2022. On November 3, 2022, the Court so-ordered a stipulation vacating the Note of Issue and providing that Defendant shall complete their document production by November 18, 2022, with a note that "this is the final extension of discovery. No further extensions will be granted absent a genuine emergency" (NYSCEF 34).
Despite this warning, it appears that Defendants have failed to complete their document production. And since Defendants have failed to respond to this motion, they have not provided a reasonable excuse for this failure. However, given that this is the first discovery motion made, the Court finds that the alternative relief sought by Plaintiff is appropriate, along with an assessment of fees and costs for forcing Plaintiff to seek relief from the Court. Defendants shall complete their production of documents within 10 days of the date of this decision and order, and the Note of Issue deadline is extended to 30 days after Defendants have completed their production of documents. Defendants are forewarned that failure to comply with this schedule may trigger more severe sanctions, including striking their answers .
Plaintiff has complied with the requirements of CPLR 3124 by submitting an affirmation of good faith in support of this motion (NYSCEF 37; see Cashbamba v 1056 Bedford LLC, 172 A.D.3d 415, 416 [1st Dept 2019]).
Accordingly, it is
ORDERED that Plaintiffs motion is granted in part; it is further
ORDERED that Defendants shall complete their production of documents within ten (10) days of the date of this Order; it is further
ORDERED that the Note of Issue deadline is extended to thirty (30) days after Defendants have completed their production of documents; and it is further
ORDERED that Defendants shall reimburse plaintiff for reasonable counsel fees and expenses incurred in connection with this motion.
This constitutes the Decision and Order of the Court.