Hutchinson v Langer

[*1] Hutchinson v Langer 2009 NY Slip Op 52427(U) [25 Misc 3d 1235(A)] Decided on December 3, 2009 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 3, 2009
Supreme Court, Kings County

Shirley Hutchinson, Plaintiff,

against

Glen Langer, KIM LEE CHI, INC. MORRIS RASHAL, SOUTHERN CONSULTING, INC. MARIS DEVELOPMENT, LTD., THOMAS F. CUSANELLI, RA, T.F. CUSANELLI ARCHITECTS AND PLANNERS MAYTAL, LLC., Defendants.



20667/07



For Plaintiff

Brian F. Ward, Esq.

188 Montague Street, Suite 500

Brooklyn, New York 11201

718-858-1900

For Defendant Morris Rashal and Maris Development, Ltd:

Tracey L. Frankel, Esq.

Farber Brocks & Zane L.L.P.

51 Charles Street, 2nd Floor

Mineola, New York 11501

516-739-5100

Francois A. Rivera, J.

By notice of motion filed on July 16, 2009, under motion sequence number seven, defendants Morris Rashal and Maris Development Ltd., (hereinafter the moving defendants) jointly move pursuant to CPLR §2221(d) for an order permitting re-argument of its prior motion, sequence number four, (hereinafter the subject prior motion) which sought, inter alia, dismissal of plaintiff's complaint pursuant to CPLR §3126. The subject prior motion was decided by order of this court dated March 26, 2009 (hereinafter the subject order). Plaintiff opposes the motion.

BACKGROUND

On or about May 22, 2007, plaintiff served the moving defendants with a summons and verified complaint. On August 29, 2007, the moving defendants joined issue by serving plaintiff with their verified answer along with their combined demands, notice for discovery and inspection and notice for deposition.

MOTION PAPERS

The moving defendants' motion papers consist of an affirmation of counsel and [*2]nine annexed exhibits labeled 1 through 4 and A through E. Exhibit 1 is a copy of the subject prior motion. Exhibit 2 is a copy of the papers plaintiff submitted in opposition to the subject prior motion. Exhibit 3 is a copy of the moving defendants' reply to plaintiff's opposition to the subject prior motion. Exhibit 4 is a copy of the subject order dated March 26, 2009 denying the subject prior motion. Exhibit A is a copy of the subject order with notice of entry on May 1, 2009. Exhibit B is a copy of the moving defendants' notice of motion dated May 6, 2009 under motion sequence number six, seeking to reargue motion sequence number four which yielded the subject order. Exhibit C is a copy of the papers plaintiff submitted in opposition to motion sequence number six. Exhibit D is a copy of the moving defendants' reply to plaintiff's opposition to motion sequence number six. Exhibit E is a copy of this court's order dated July 10, 2009 denying motion sequence number six. The court denied the motion without prejudice to renew within thirty days with a direction that the renewal motion include a copy of the prior motion papers.

Plaintiff's opposition consists of an affirmation of counsel and three exhibits. Exhibit A is a copy of the moving defendants' affirmation in good faith dated November 14, 2008. Exhibit B is a copy of the instant summons and complaint. Exhibit C consists of correspondence between plaintiff's counsel and the moving defendants' counsel.

The moving defendants reply to plaintiff's opposition with an affirmation of counsel.

APPLICABLE LAW

CPLR §2221. Motion affecting prior order. (a) A motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it, except that: (d) A motion for leave to reargue: 1. shall be identified specifically as such; 2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and 3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry.

CPLR § Rule 3124 pertains to discovery and provides as follows: Failure to disclose; motion to compel disclosure. If a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response.

CPLR § 3126 provides for penalties for refusal to comply with order or to disclose.

Part 202 of the Uniform Rules for the New York State Trial Courts at §202.7 provides in pertinent part as follows:

(a) There shall be compliance with the procedures prescribed in the CPLR for the bringing of motions. In addition, except as provided in subdivision (d) of this section, no motion shall be filed with the court unless they have been served and filed with the [*3]motion papers (1) a notice of motion and (2) with respect to a motion relating to disclosure or to a bill of particulars, an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion.

[c) The affirmation of the good faith effort to resolve the issues raised by the motion shall indicate the time, place, and nature of the consultation and the issues discussed and any resolutions, or shall indicate why no such conferral with counsel for opposing parties was held.

DISCUSSION

By order dated July 10, 2009, this court denied motion sequence number six on procedural grounds and without prejudice based on the moving defendants' failure to annex the prior motion papers which yielded the subject order. The moving defendants were advised that they could renew the motion within thirty days so long as they annexed the prior motion papers to the renewal motion. The motion would be deemed timely if these conditions were met and if the moving defendants demonstrated that the motion was timely when originally made.

The instant motion is the moving defendants attempt to do that and the court finds that it is timely. The court denied motion sequence number four based on the insufficiency of the moving defendants' affirmation of good faith pursuant to the Uniform Rules for Trial Cts [22 NYCRR] § 202.7 [a] [2].

The affirmation of good faith included in motion sequence number four is annexed herein as part of Exhibit 1. Only the third and fourth paragraph of the affirmation of good faith provides information regarding the moving defendants efforts to consult with plaintiff's counsel on the disclosure issues. The two paragraphs state the following.

"3. Your affirmant's office has sought discovery from the plaintiff for one and a half years and to date has received no responses including a bill of particulars. 4. Your affirmant's office wrote four letters to plaintiff with no responses. A previous motion to compel this same discovery was granted by this court on July 22, 2008. Plaintiff has ignored the Court's order, making the instant motion unavoidable."

The court found that the affirmation of good faith was insufficient. It lacked any detail of the time, place and nature of the consultation and the issues discussed and any resolutions of same on the disclosure issues. The affirmation of good faith did not state whether the moving defendants consulted with plaintiff's counsel, or their reasons for not doing so, before making the prior motion.

The moving defendants contend that their reference to four letters sent to plaintiff's counsel was sufficient and satisfied the requirements of Uniform Rules for Trial Cts [22 NYCRR] § 202.7 [c]. They further argue that any further effort on their part to obtain discovery would have been futile and was therefore unnecessary. They further contend that the court erred when it did not acknowledge the law of futility.

Plaintiff contends that the affirmation of good faith is indeed insufficient and that [*4]the court did not misapprehend the law or the facts. Significantly, plaintiff counsel also avers that on January 16, 2009, he tendered a copy of plaintiff's response to the moving defendants various disclosure demands which they refused to accept. He then shipped the documents to them on the same day by Federal Express Overnight mail. Thereafter, on January 26, 2009, the moving defendants sent plaintiff's counsel a letter acknowledging their receipt of the demanded disclosure documents.

The moving defendants do not deny their receipt of the demanded disclosure documents. Rather they contend that the plaintiff provided them too late and that their right to seek sanctions pursuant to CPLR §3126 for the late or inadequate disclosure is not impaired.

As previously stated by the court in the subject order, the purpose of affirmation of good faith and the required information is to remove from the court's work load all but the most significant and unresolvable disputes over what has been the most prolific generator of pretrial motions: discovery issues. (Eaton v Chahal 146 Misc 2d 977 [New York County Supreme 1990]).

The fact that the moving defendants may have had a plausible explanation for not conferring with plaintiff's counsel, misses the point entirely. The burden is on the party seeking sanctions based on disclosure issues to comply with Uniform Rules for Trial Cts [22 NYCRR] § 202.7 [a][2] and [c]. If the moving defendants did not confer with the opposing parties counsel, they should have set forth their reasons for not doing so in the affirmation. The court should not be left to wonder whether any consultation with opposing parties counsel occurred, or be compelled to assume the reasons why no consultation occurred.

The moving defendants offer now for the first time in the instant motion their explanation of their strategic choice not to confer with plaintiff's counsel prior to making the prior motion. The court rules require the explanation to be set forth within the affirmation of good faith. It is the moving defendants' explanation that is too late. The affirmation of good faith was insufficient. The court finds that it did not misapprehend the law or the facts in deciding the subject order.

The moving defendants' motion for leave to reargue the subject prior motion is denied.

The foregoing constitutes the decision and order of this court.

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J.S.C.