Opinion
Index Nos. 523025/2018 510481/2021 Motion Seq. 8 & 10
08-21-2023
ROBERT J. MUSSO, Chapter 7 Trustee of the Estate of Ladder 3 Corp. Plaintiff, v. OTR MEDIA GROUP, INC., AHARON NOE a/k/a ARI NOE, SARAH NOE, ZYSHE NOE, MOSHE MINZ, C & M CAPITAL GROUP, LLC., GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, UNITED STATES LIFE INSURANCE COMPANY, INC., THE CITY OF NEW YORK, GREENFIELD CUSTOM BUILDERS, INC., PARK NATIONAL CAPITAL FUNDING, LLC., WHOOPI U.S.A., INC., STERLING CATERERS, INC., DEAL BUSTER, INC., BLIZZARD COOLING, INC., AND OTR330 BRUCKNER, LLC., Defendants, GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, Plaintiff, v. OTR MEDIA GROUP, INC., AHARON NOE a/k/a ARI NOE, the and ROBERT J. MUSSO, Chapter 7 Trustee of Estate of Ladder 3 Corp. Defendant,
Unpublished Opinion
PRESENT: HON. LEON RUCHELSMAN, JUDGE
DECISION AND ORDER
LEON RUCHELSMAN, JUDGE
The plaintiff has moved seeking to strike the defendants answer for the failure to comply with an order of the court dated February 6, 2020 requiring the defendant comply with discovery within forty-five days. The defendant has cross-moved essentially for more time in which to comply with discovery. The motions have been opposed respectively. Papers were submitted by the parties and after reviewing all the arguments this court now makes the following determination..
As recorded in a prior order, in 2017 the plaintiff obtained a judgement against defendant OTR Media Group Inc., in the amount of $287,500 in a Chapter 7 proceeding in the United States Bankruptcy Court. That judgement was based upon OCR's breach of a stipulation of settlement executed in 2011 regarding breach of contract claims that took place' in .2010. This current lawsuit alleges violations of the debtor-creditor law asserting that fraudulent conveyances were made by the individual defendants leaving OTR insolvent.
In a decision and order dated February 6, 2020 the court ordered the defendant to provide discovery requested within 45 days. The plaintiff has moved arguing the defendant has failed to comply with discovery for the ensuing three years. The defendant Aharon Noe has provided an affidavit wherein he states that "I have been waiting for the. opportunity to fulfil the discovery demands including attending a deposition by Plaintiff, so I can effectively move for summary judgment" (see, Affidavit of Aharon Noe, ¶ 10 [NYSCEF Doc. No. 141]). However, defendant's eagerness to engage in discovery is belied by the record. Thus, on September 12, 2019 the plaintiff served discovery demands: upon the defendant (see, Plaintiff's First Notice for Discovery and Inspection [NYSCEF Doc. No. 55]) . On October 2, 2019 the court issued an order requiring the defendant to respond to the plaintiff's demands within thirty days (NYSCEF Doc. No., 37). A good faith letter was served and when that yielded no discovery a motion seeking to strike the answer was filed. That motion resulted in the above noted decision which, again, required the defendant to comply with the discovery demands within forty-five days. A second good faith letter was served on July 29, 2020 informing the defendant that no discovery had yet been provided (NYSCEF Doc. No. 87) . A second motion to strike the answer for the failure to provide any discovery and a third motion to strike for the failure to provide any discovery were both filed.
Conclusions of Law
It is well settled that the court may impose discovery sanctions where a party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" (Amos v. Southampton Hospital, 198 A.D.3d 947, 156 N.Y.S.3d 349 [2d Dept., 2021]). The drastic remedy of striking a pleading is proper where there is a clear showing that a party's failure to comply with discovery is willful and contumacious (Kopelevich & Feldsherova, P.O, v. Geller Law Group, P.C., 191 A.D.3d 853, 142 N.Y.S.3d 577 [2d Dept., 2021]). Wilful and contumacious conduct may be inferred from a party's repeated failure to comply with court ordered discovery as well as insufficient explanations regarding such non-compliance (Sanabria v. NYSARC Inc., 204 A.D.3d 716, 163 N.Y.S.3d 871 [2d Dept., 2022]). Therefore, where a party "'repeated[ly] fail[ed] to comply with court-ordered discovery' over 'an extended period of time[,]' and the court itself found that the defendants offered 'inadequate explanations for their failures to comply'" then striking the answer is proper (see, 255 Butler Associates LLC v. 255 Butler LLC, 208 A.D.3d 831, 173 N.Y.S.2d 672 [2d Dept., 2022]).
In this case there has clearly been an extended period of time Wherein the defendant has failed to provide any discovery or appear for a deposition. As noted, the defendant asserts he wishes to engage in discovery. Indeed, defendant's counsel argues that "OTR and Noe are eager to complete the discovery so it can move swiftly to summary judgment" and that "OTR and Noe are willing to do whatever is necessary in order to complete all discovery that are allegedly past due, within thirty (30) days from the date the Court decides this motion" (Affirmation in Reply, ¶ 5 [NYSCEF Doc. No, 50]). However, there has been no explanation offered why discovery was not completed until this point, why numerous deficiency letters were unanswered and why numerous motions had to be filed, rendering the defendant's readiness hollow. Thus, the only conclusion that can reasonably be drawn is that the defendant's conduct in failing to conduct discovery was wilful and contumacious. Consequently, the motion seeking to strike the answer is granted. The cross-motion seeking more time in which to engage in discovery is denied.
So ordered.