Opinion
600653/06.
Decided January 15, 2010.
In this action brought to recover prevailing wages and benefits, plaintiffs Julio Preciado, Rafael Ramano, German Hernandez, Severino Hernandez. Giovani Misael Orozco, Jofre Toledo (Preciado plaintiffs) make the within motion to preclude, pursuant to CPLR 3126, seeking an Order 1) precluding Defendants BBR Contracting Corp., Navigator's Insurance Company, American Manufacturers Mutual Insurance Company and Evangelos Ardavanis (BBR defendants) from introducing testimony documents at trial; 2) striking the BBR defendants' answer; and 3) granting such other and further relief as to the Court may seem just and proper.
FACTS AND PROCEDURAL HISTORY
The plaintiffs are former workers employed by defendant contractor BBR Contracting Corp., a construction contractor. Generally, plaintiffs performed roofing and masonry work on various public improvement contracts.
Plaintiffs' former counsel of Barnes, Iaccarino, Virginia, Ambinder Shepherd (BIVAS) commenced the first action alleging, inter alia, that BBR failed to pay plaintiffs the prevailing wages pursuant to New York Labor Law § 220. Two years later, BIVAS moved to amend the complaint to add additional plaintiffs. The BBR defendants objected to the amendment, and thereafter commenced the second action on behalf of the additional plaintiffs.
In May 2008, BBR moved to disqualify BIVAS in both actions because of BIVAS's prior representation of BBR in connection with a wage underpayment claim against one of its subcontractors. Pursuant to Judge Shafer's Order and Decision dated March 13, 2009, both actions were consolidated under this caption. Judge Shafer also disqualified BIVAS as plaintiffs' counsel. The parties stipulated on June 22, 2009 to stay the consolidated action for 30 days, to allow the consolidated plaintiffs to retain new counsel.
The Preciado plaintiffs served its combined discovery demands on defendants on or about July 27, 2007. The Preciado plaintiffs served a bill of particulars in February 2008. On July 27, 2009, a preliminary conference Order (PC Order) required all items sought for discovery and inspection to be produced or answered by October 1, 2009. On August 13, 2009, the consolidated plaintiffs served a second set of combined discovery demands on defendants. On November 17, 2009, BBR served its combined responses to plaintiff's second combined discovery demands.
ARGUMENTS
The plaintiffs argue that the failure of BBR defendants to timely comply with the PC Order requires (1) preclusion; (2) striking BBR's answer; and (3) granting such other and further relief as this Court may seem just and proper.
BBR contends that consolidated plaintiffs' motion to preclude should be denied in its entirety because (1) any failure by BBR to timely comply with consolidated plaintiffs' discovery demands was not willful, deliberate nor contumacious, because such failure was due to BIVAS' conflict of interest issue and ensuing settlement negotiations; (2) consolidated plaintiffs have not suffered any prejudice by the delay; and (3) BBR has not defaulted in its discovery obligations because BBR has produced all the documents demanded and have annexed same to its opposition motion papers, as well as, responses to consolidated plaintiffs' discovery demands.
DISCUSSION
The motion to preclude is denied without prejudice because 1) plaintiffs have failed to show that defendants have acted willfully or contumaciously in its delay in complying with plaintiffs' discovery demands; and 2) defendants have asserted a reasonable excuse in its failure to comply with outstanding discovery deadlines as set forth by in the PC Order.
The court is permitted to prohibit a disobedient party from supporting or opposing designated claims or defenses by precluding evidence or by striking a pleading, where the disobedient party has "refused to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126 [3]). The extreme penalty of striking a pleading for failure to comply with a discovery order or request is only warranted where the movant has met its burden of conclusively demonstrating that the failure to disclose was willful, contumacious, or due to bad faith ( Roman v. City of New York , 38 AD3d 442 , 443 [1st Dept 2007]; Vatel v. City of New York, 208 AD2d 524, 525 [2d Dept 1994]). Moreover, even if the movant satisfied its burden, the non-moving party must be afforded an opportunity to offer a reasonable excuse or a meritorious defense for its failures ( Catarine v. Beth Israel Med. Ctr., 290 AD2d 213, 215 [1st Dept 2002]).
When the proffered excuse is reasonable, it is improper for the court to striking a pleading ( see Bryne v. City of New York, 301 AD2d 489, 490 [1st Dept 2003]). Absent a finding of willfulness, the extreme sanction of striking a pleading is unwarranted, especially where the moving party cannot show that it has been prejudiced ( Thomas v. McGuire service Corp., 251 AD2d 148, 148-149 [2d Dept 1998], citing Bako v. V.T. Trucking Co., 143 AD2d 561 [2d Dept 1988]).
Here, the consolidated plaintiffs assert that BBR has not complied with plaintiffs' combined discovery demands dated July 25, 2007, notices of depositions, expert testimony disclosure, interrogatories, and request for production of documents. However, the consolidated plaintiffs have not supported their claim that defendants willfully or contumaciously failed to comply with such discovery demands. Although defendants have failed to respond to numerous requests by plaintiff to comply, this Court does not find defendant's less-than-diligent efforts to comply with the consolidated plaintiffs' discovery demands rise to the level of wilfulness or is contemptuous ( see Bako, 143 AD2d at 561 [finding defendant counsel's less-than-diligent meeting of court deadlines did not warrant imposition of severe sanction of striking answer absent finding that conduct was willful, contumacious, or due to bad faith and absent a showing of prejudice]).
Furthermore, defendants assert that its failure to comply with the PC Order largely due to BIVAS' conflict of interest. With respect to the BBR's failure to comply with the Preciado plaintiffs' combined discovery demands, this Court finds BBR's concern about conflict of interest constitutes a reasonable excuse for its failure to timely comply with the first and second set of discovery demands. Indeed, the fact that Judge Shafer eventually disqualified the BIVAS firm, ( see Preciado, et al. v. BBR Contracting Corp., et al., Sup Ct, New York County, March 13, 2009, Shafer, J., index No. 600653/06), and Ordered a stay of proceedings until late July 2009 validates defendants' reticence to produce discovery.
Defendants claim that the consolidated plaintiffs' instant motion is moot in light of defendants' current compliance with the discovery demands. However, the consolidated plaintiffs further contend that defendants' answers are non-responsive. The reply papers contend that the consolidated plaintiffs have suffered prejudice as a result of BBR defendants' noncompliance. Unfortunately, plaintiffs have failed to prove willfulness on the part of BBR and BBR has posited a reasonable excuse in its delay in compliance, e.g., based on the conflict of interest issue and settlement negotiations. The consolidated plaintiffs' more compelling argument supporting preclusion is that BBR's non-responsive answers to interrogatories etc., is valid. The Court has examined BBR's Combined Responses to Plaintiff's Second Combined Discovery Demands and deem the responses unsatisfactory.
Accordingly, it is
ORDERED, that plaintiffs' motion to preclude is denied without prejudice for the foregoing reasons; and it is further
ORDERED, that the parties shall appear in Part 8 on February 11, 2010 at 10:00 A.M. This date shall not be adjourned without good cause shown.