Opinion
Index No. 656938/2019 Motion Seq. Nos. 006 007 008
10-14-2023
THOMAS O'CONNOR, CVO ADVISORS PTE. LTD Plaintiff, v. SOCIETY PASS INCORPORATED, Defendant.
Unpublished Opinion
Motion Date 05/25/2023, 08/24/2023, 09/21/2023
DECISION + ORDER ON MOTION
HON. JOEL M. COHEN, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 006) 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 232, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243 were read on this motion to COMPEL DISCOVERY
The following e-filed documents, listed by NYSCEF document number (Motion 007) 267, 268, 269, 270, 271, 272, 277, 278, 279, 280, 281, 282 were read on this motion for TRIAL PREFERENCE
The following e-filed documents, listed by NYSCEF document number (Motion 008) 273, 274, 275, 283 were read on this motion to STRIKE NOTE OF ISSUE
Defendant Society Pass Incorporated's ("Defendant") motions to compel and extend the time to complete discovery (Mot. Seq. No. 6) and to vacate the Note of Issue and Certificate of Readiness (Mot. Seq. No. 8) are denied. Plaintiff Thomas O'Connor's ("Plaintiff') motion for a trial preference (Mot. Seq. No. 7) is also denied.
BACKGROUND
This case involves an Employment Agreement between Plaintiff and Defendant (NYSCEF 212). Plaintiffs' Complaint was filed on January 6, 2020 (NYSCEF 210). Defendant's Answer with Counterclaims was filed on January 27, 2020 (NYSCEF 211).
Fact discovery was originally scheduled to close on December 18, 2020 (NYSCEF 19 [Preliminary Conference Order]). Defendant served a First Request for the Production of Documents and Interrogatories dated August 24, 2020 (NYSCEF 213). Plaintiff served objections and responses dated September 25, 2020 (NYSCEF 214).
On April 23, 2021, the Court granted Plaintiffs motion to compel electronically stored information ("ESI") from Defendant (NYSCEF 69, 78 ["ESI Order"]). As a result, fact discovery was extended through December 28, 2021 (NYSCEF 72). A subsequent January 18, 2022 Case Management Order extended fact discovery through August 1, 2022 (NYSCEF 81).
Thereafter, Plaintiff successfully moved to compel documents from Defendant under the terms of the ESI Order and was awarded costs and fees, including attorney's fees, (NYSCEF 182 [March 6, 2023 Order]). During the March 6, 2023 hearing on Plaintiff s motion, the Court extended fact discovery through May 31, 2023 to complete depositions (NYSCEF 200 [Tr. at 20]; NYSCEF 185 [March 8, 2023 Order]).
On March 24, 2023 - more than two-and-a-half years after serving its first requests -Defendant served a Supplemental Request for Documents and Interrogatories (NYSCEF 215, 216). On April 18, 2023, Plaintiff served objections (NYSCEF 217). Thereafter, the parties engaged in a meet-and-confer process (NYSCEF 218-221). Following an initial call, counsel for Plaintiff represented that certain documents sought did not exist or were already provided.
On May 18, 2023, the Court granted partial summary judgment in favor of Plaintiff on his First Cause of Action for breach of a Common Stock Purchase Warrant (NYSCEF 198). On May 25, 2023, a week after the Court's summary judgment order was issued - and less than a week before discovery was to close - Defendant filed its motion to compel production of documents and responses to interrogatories and extend the deadlines to complete discovery (NYSCEF 207).
Also on May 25, 2023, the Court extended discovery through July 7, 2023 for the limited purpose of completing depositions (NYSCEF 230). On June 27, 2023, the Court granted Plaintiff O'Connor's request to be deposed remotely (NYSCEF 253). On July 5, 2023, the Court "so ordered" the parties' stipulation concerning the deposition of Defendant's representative Tan Bien Kiat in Thailand (NYSCEF 261).
On August 22, 2023, counsel for Plaintiff filed a Note of Issue and Certificate of Readiness ("NOI" [NYSCEF 266]) indicating that discovery was complete. On August 24, 2023, Plaintiff moved for a trial preference (NYSCEF 267). On September 8, 2023, Defendant moved to strike the NOI (NYSCEF 273).
On September 21, 2023, Plaintiff moved for summary judgment on his Fifth Cause of Action for breach of contract (NYSCEF 284). Also on September 21, 2023, Defendant moved to amend its answer to include a fraudulent inducement defense and to renew the Court's award of partial summary judgment to Plaintiff (NYSCEF 299).
DISCUSSION
A. Defendant's Motion to Compel is Denied
A movant seeking relief under CPLR 3124 must show that the discovery sought is "material and necessary" to their claim or defense (Pacelli v Peter L. Cedeno & Assoc., P.C., 192 A.D.3d 560 [1st Dept 2021]). A motion to compel should be denied where it is "entirely speculative" (Leventhal v Bayside Cemetery, 188 A.D.3d 604 [1st Dept 2020] [citations omitted]).
The Court is vested with "broad discretion. . .to supervise the discovery process" (GoSmile, Inc. v Levine, 112 A.D.3d 469, 470 [1st Dept 2013] [collecting cases]). The failure to demonstrate a good faith attempt to resolve the discovery dispute and "unreasonable delay" may warrant denial of a motion to compel (Amato v Verizon New York Inc., 205 A.D.3d 406, 407 [1st Dept 2022]).
Defendants motion is denied. First, the pleadings in this case were filed in January of 2020 and Defendants initial discovery demands were served in July of 2020. Defendant has not offered any reason why it waited more than two-and-a-half years to serve supplemental discovery requests immediately before the already much-delayed close of discovery. No depositions were taken nor is any other fact alleged to support Defendant's allegation that "Plaintiff is obviously attempting to hide documents in order to cover up his wrongdoing" (Moving Br., at 2 [NYSCEF 208]).
Second, the record does not indicate that any evidence has been withheld or that any of the allegedly withheld evidence is necessary for Defendant's claims or defenses (Gama Aviation Inc. v Sandton Capital Partners, LP, 113 A.D.3d 456, 456 [1st Dept 2014]). Counsel for Plaintiff represented that certain categories of documents sought did not exist and that production was complete as to certain other categories. Following the filing of its motion, Defendant had an opportunity to depose Mr. O'Connor, including about the representations that certain documents have been produced or do not exist (Marquez v 171 Tenants Corp., 161 A.D.3d 646, 647 [overturning prelusion order where testimony as to search efforts was sufficient to establish that documents were not withheld]).
Third, the record does not reflect a good faith attempt by Defendant to meet-and-confer as required by 22 NYCRR 202.7(a) as incorporated into Rule 14 of the Rules of the Commercial Division after receiving comments from Plaintiffs counsel on May 11, 2023 (NYSCEF 221) including representations that documents did not exist or that production was complete (Nagi v Ninety-Fourth St., LLC [N.Y. Sup Ct, New York County 2023] [citing Amato]).
Finally, the motion to compel responses to supplemental interrogatories is denied. The supplemental interrogatories are beyond the scope authorized by Rule 11-a of the Rules of the Commercial Division. Further, the information sought could and should have been the subject of questioning at Mr. O'Connor's deposition. As the narrative at the beginning of this decision makes clear, this case needs to move forward not backward into recurring rounds of discovery.
B. Defendant's Motion to Strike the Note of Issue is Denied
In light of the denial of Defendant's motion to compel, there is no basis to strike the NOI. 22 NYCRR 202.21(e) provides, in relevant part, "[w]ithin 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." As discovery is closed and there are no other issues that warrant striking the NOI, the motion is denied (500 Eighth Ave. Ltd. Liab. Co. v Resource Training Ctr. Inc., 214 A.D.3d 570, 571 [1st Dept 2023] [collecting cases]).
C. Plaintiff's Motion for a Trial Preference is Denied
Finally, Plaintiff seeks a trial preference on the grounds that this action has been long delayed and he "has a cardiac condition and his long-term survival is uncertain" (NYSCEF 268 ¶ 6). CPLR 3403(a)(3) provides, in relevant part, that "an action in which the interests of justice will be served by an early trial" is entitled to a preference. The movant bears the burden of establishing an entitlement to a preference through affidavits and other evidence (Roman v Sullivan Paramedicine, Inc., 101 A.D.3d 443, 443 [1st Dept 2012] citing Martinkovic v Chrysler Leasing Corp., 29 A.D.2d 636, 636 [1st Dept 1968] [permitting renewal and considering medical expert and other affidavits]).
Plaintiffs application is submitted by an affirmation of counsel only (NYSCEF 268). The affirmation references an un-swom doctor's note from June 21, 2023 recommending that Plaintiff not travel overseas for his deposition because of his health (NYSCEF 258). Plaintiff s submissions are insufficient to demonstrate a statutory entitlement to a preference. Nevertheless, if a trial is required (after summary judgment motions are decided), the Court will schedule it as expeditiously as possible.
* * * *
Accordingly, it is
ORDERED that Defendant's motion to compel discovery (Mot. Seq. No. 6) is DENIED; it is further
ORDERED that Plaintiffs motion for a trial preference (Mot. Seq. No. 7) is DENIED; it is further
ORDERED that Defendant's motion to strike the Note of Issue and Certificate of Readiness (Mot. Seq. No. 8) is DENIED.
This constitutes the decision and order of the Court.