Opinion
Index No. 150702/2019 Motion Seq. No. 005
10-17-2022
O'KEEFFE'S INC. D/B/A SAFTI FIRST, Plaintiff, v. 400 TIMES SQUARE ASSOCIATES, LLC.BRF CONSTRUCTION CORP., SCOTT 42 DEVELOPMENT, LTD, CACTUS ON NINTH, LLC,NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NES EQUIPMENT SERVICES CORPORATION D/B/A NES RENTALS, KENSEAL CONSTRUCTION PRODUCTS OF MARYLAND INC. N/K/A HD SUPPLY CONSTRUCTION SUPPLY, LTD., TANNER BOLT & NUT INC..FENSTE INC. Defendant.
Unpublished Opinion
MOTION DATE 07/14/2022
DECISION+ ORDER ON MOTION
HON. JOEL M.COHEN, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 005) 177, 178, 179, 180, 181, 182, 183, 184, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200 were read on this motion to COMPEL DISCOVERY
Defendant 400 Times Square Associates, LLC ("400 Times Square" or "Defendant") moves pursuant to CPLR 3124, to compel Plaintiff O'Keeffe's Inc. d/b/a Safti First ("O'Keeffe's" or "Plaintiff) to respond fully and completely to the supplemental discovery requests of 400 Times Square dated April 26, 2022, and to produce William O'Keeffe for a deposition in compliance with the Notice to Take Deposition upon Oral Examination dated April 26, 2022, that was served by defendant 400 Times Square, or, in the alternative, to preclude (NYSCEF 177). The motion is GRANTED in part to the limited extent that Plaintiff shall conduct a search for the documents identified in Paragraph 23 of the Affidavit of Victor A. Worms and is otherwise DENIED.
According to 400 Times Square, "the remaining discovery in this action is narrowly confined to whether the plaintiff has evidence to demonstrate that it invoiced Crowne Architecture for labor expended to install the fire-rated glass in the defendant's building" (Worms Aff. ¶ 22 [NYSCEF 178]). Counsel for 400 Times Square references three important categories of documents it has requested (Worms Aff. ¶ 23):
Copies of all invoices, bills or any other documents sent to Crowne by Plaintiff reflecting all charges or expenses for labor rendered to 400 Times Square for the preparation of the Building for the installation of the fire-rated glass in the Building;
Copies of all invoices, bills or any other documents sent to Crowne by Plaintiff reflecting all charges or expenses for labor rendered to 400 Times Square for the installation of the fire-rated glass in the Building; and
Copies of all invoices, bills or any other documents sent to Crowne by Plaintiff reflecting all charges or expenses for the manufacturing of the fire-rated glass that was installed in the Building.Counsel for 400 Times Square also requested a Jackson Affidavit concerning Plaintiffs searches (NYSCEF 200).
Plaintiff has submitted an affidavit of Catherine Masuda, Plaintiffs Vice President, Contracts Administration (NYSCEF 186) stating that Plaintiff did not supply labor on the project and that she "is not aware of the existence of any such documents" sought by 400 Times Square.
Additionally, Plaintiff has produced sworn interrogatory responses of 400 Times Square indicating that co-defendant BRF Construction Corp. - not Plaintiff- performed labor on the project supporting Plaintiffs claim that it does not have the documents 400 Times Square seeks (NYSCEF 193). On this record, Plaintiff is directed to conduct a thorough search for the documents identified in Paragraph 23 of the Worms Affidavit and produce those documents or a supplemental Jackson Affidavit detailing its searches and certifying that no documents were located within thirty (30) days (Agius v Gray Line Corp., 75 Misc.3d 1219(A) [Sup Ct New York County 2022]).
The motion to depose William O'Keeffe in lieu of Catherine Masuda is denied. Plaintiff timely filed a CPLR 3106(d) notice indicating that it would produce Ms. Masuda as a corporate representative (NYSCEF 194). CPLR 3106(d) is expressly referenced in Rule 11 -f of the Commercial Division Rules and permits an entity, like Plaintiff, to designate a deponent on at least ten days' notice (22 NYCRR 202.70). Plaintiffs offer to produce Masuda was proper and the motion to depose Mr. O'Keeffe in her stead is denied (Barnwell v Emigrant Sav. Bank, 81 A.D.3d 518, 518 [1st Dept 2011]). The time for taking party depositions has otherwise expired (NYSCEF 174).
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Accordingly, it is
ORDERED that Defendants' motion to compel the production of documents is GRANTED to the limited extent that Plaintiff shall conduct a thorough search for the documents identified in Paragraph 23 of the Worms Affidavit and produce those documents or a supplemental Jackson Affidavit within thirty (30) days and is otherwise DENIED; it is further
ORDERED that Defendants' motion to compel the deposition of William O'Keeffe is DENIED.
This constitutes the Decision and Order of the Court.