Cohen v Dampf

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Cohen v Dampf 2012 NY Slip Op 30666(U) March 6, 2012 Supreme Court, Nassau County Docket Number: 018594/10 Judge: Robert A. Bruno Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. --------- ------------------------- ------------ ------- -- - -- --------- ------ " --- ------------------------------- -------------- -- ------------- ------- --- " [* 1] ''.1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRESENT: BON. ROBERT A. BRUNO, J. MARK COHEN, TRIALIIAS PART 20 Index No. : 018594/10 Plaintiff, Motion Date: 01106/12 Motion Sequence: 001 , -against- 002 ALLAN DAMPF, DECISION & ORDER Defendant. Papers Numbered Sequence #001 Notice of Motion, Affdavit , Affnnation & E"hibits ......................... I Sequence #002 Notice of Cross Motion, Affdavit , Affirmation & E"hibits ............... 2 Memorandum of Law in Support of Cross Motion ............................. 3 Reply to Motion and Opposition to Cross Motion .............................. 4 Reply to Opposition to Cross Motion .................................................. 5 Memorandum of Law in Reply to Motion and Cross Motion ............. 6 In October of 2006 , the plaintiff Mark Cohen , a jeweler, and the defendant Alan Dampf a dentist, entered in an ar transaction pursuant to which plaintiff traded , two pencil-signed , limited edition Andy Warhol prints in even e"change for two , undated/untitled Marc Chagall watercolor paintings. The paries , long-time friends and neighbors , had engaged in purchase and/or barertye ar transactions for some 30 years prior to the October 2006 e"change. The plaintiff contends that prior to the trade , the defendant allegedly assured him that the two Chagalls were authentic paintings. The plaintiff claims that defendant was an e"perienced ar merchant and trader. Defendant denies these assertions and contends that he infonned the plaintiff only that the paintings were "attbuted" to Chagall , not that they were definitively authenticated Chagall originals. Some years afer the plaintiff acquired the Chagalls , he took them to Sotheby s to have them e"amined and was infonned that they were not painted by Chagall , but rather, were " flat-out fakes (Cohen Dep. , 142- 145). Page 1 ," [* 2] Cohen v. Dampf Inde)C No. : 018594/10 In October of 20 10 , the plaintiff commenced the within action as against defendant Em. (Pltff s ). The plaintiffs verified complaint alleges in substance that the two Warhol prints possessed a value in 2006 of appro)Cimately $100 000. 00; that the defendant is an ar " merchant" as inter alia defined by, Article II of the Ars and Cultual Affairs Law; that the defendant misrepresented the original and authenticated status of the watercolors; and that , the plaintiff, as a mere novice , reasonably relied on both the defendat' s statements and the documents he provided which allegedly attested to the lineage and originality of the two watercolors (Ballato Aff. , E)Chs. Based on the foregoing, the plaintiff has interposed five causes of action sounding in fraud reasonable reliance , unjust enrchment, and the defendant' s alleged breach of e)Cpress and implied waranties in his purported capacity as an art dealer. The defendant has anwered , denied the material allegations of the complaint and interposed varous afnnative defenses. Disclosure has been conducted and depositions have been held although the paries have accused each other of failng to comply with each other s discovery demands and/or witholding or destroying evidence. The plaintiff now moves for an order inter alia (1) striking the defendant' s answer or otherwse sanctioning him; or (2) alternatively, compellng him to provide furer discovery; and (3) for the imposition of sanctions based on the defendant's claimed spoliation of evidence (CPLR 3126 3124). The defendant has opposed the application and cross moved for summar judgment dismissing the complaint , or alternatively, for an order compellng the plaintiff to respond to discovery demands he has served. The paries ' respective motions are granted to limited e)Ctent indicated below. It is settled that the striking of an answer is a drastic remedy which is inappropriate absent a clear showing tht the movant' failure to comply with discovery demands is willful contuacious , or in bad faith (Laskin v. Friedman 84 AD3d 90 AD3d 617; Hoi Wah Lai v. Mack 89 AD3d 1221; Nunez v. Long Island Jewish Medical Center Center-Schneider Children s Hosp. 82 AD3d 724. The Supreme Cour has broad discretion in the supervision of discovery, including the e)Ctent to which spoliation sactions may be waranted (Conte v. County of Nassau 87 AD3d 558; Constantino v. Dock's Clam Bar and Pasta House 60 AD3d 612.. see also, Jamindar v. Uniondale Union Free School Dist. 90 AD3d 610). 990; Thompson v. Dallas BBQ, With these principles in mind , and mindful of the strong public policy favoring resolution (L L Auto Distributors and Suppliers Inc. v. Auto Collection, Inc. , 85 of cases on their merits Page 2 [* 3] Cohen v. Dampf Inde)C No. : 018594/10 AD3d 734 , 736), the Cour declines to e)Cercise its discretion by imposing the drastic discovery sanction sought by the plaintiff i. e. strking the defendant' s answer (Abbadessa v. Sprint, supra, 291 AD2d 363 , 364; Brennan v. McCarthy, 255 AD2d 477 , 478). Although the record supports the inference that the defendant' s document production has ben less than complete in certn instaces afer considering all the relevant circumstaces , the Cour agrees that the paries should be afforded a time- limited opportty to finally produce any outstanding documents or materials which have yet to be disclosed (Moore v. Eyzenberg, 290 AD2d 542; Brennan v. McCarthy, supra 255 AD2d 477 478; Delaney v. Automated Bread Corp. 110 AD2d 677 678; Branker v. Nassau County, 90 AD2d 816 , 817; DeJoy v. L T Tavern Corp., 89 AD2d 613 , 614 ct, Wolper v. LaGuardia Medical Group, P. 143 AD2d 830). More specifically, the paries shall produce any outstading documents and materials within (Branker v. Nassau County, supra 90 AD2d 816 817). In light of the delays which have already ensued , the failure to establish compliance with the Court' s directive may subject the defaulting par to sanctions , including the strking of pleadings if waranted. The paries are forewared in this respect that evasively framed , boiler plate-tye objections and/or conclusory assertions of unavailabilty belied by the factul record , will not suffce (e. g., A rts4All. Ltd v. Hancock 54 AD3d 286. 30 days of the date of this order Similarly, and upon e)Cercising its broad discretion in imposing spoliation sanctions (Utica Mut. Ins. Co. v. Berkoski Oil Co. 58 AD3d 717 , 718), the Cour finds thatplaintiffhas not sustained his burden of demonstrating that the loss or destruction of evidence. Here , the defendant' s personal computer fatally compromised his abilty to prosecute the action by leaving him "prejudicially bereft" of the mean to prove his case (Laskin v. Friedman, supra 933 NYS2d 872; Jenkins v. Proto Prop. Servs. , LLC 54 AD3d 726, 726-727 see also, Scordo v. Costco Wholesale Corp. 77 AD3d 725, 727; Fossingv Townsend Manor Inn, Inc. 72 AD3d 884 885; Utica Mut. Ins. Co. v. Berkoski Oil Co. , supra 58 AD3d 717 , 718). Finally, that branch of the defendat's cross motion for sumar judgment dismissing the complaint is denied. Viewing the evidence " in the light most favorable to the plaintiff (Fundamental Portfolio Advisors, Inc. v. Tocquevile 7 NY3d 96 , 106 (2006); Mosheyev v. Pilevsky, 283 AD2d 469) and in light of the paries ' materially conflcting allegations , the Cour finds that triable issues of fact have been presented with respect to the plaintiffs claims , including his assertions that the defendant allegedly and falsely waranted and represented that the paintings were genuine Chagall watercolors and that by virte of his involvement in the ar trade , the defendant was an art merchant within the meaning of inter alia the Ars and Cultual Affairs Law. The matter, however , shall be set down for a conference before the undersigned , during which the Cour shall consider, inter alia any outstading issues or disputes relating to the conduct of discovery between the paries , including the plaintiffs claim that he is entitled to a continuation Page 3 [* 4] Cohen v. Dampf Inde)C No. : 018594/10 of the defendat' s deposition. The Cour has considered the paries ' remaining contentions and concludes that they do not warant an award of relief beyond that granted above. Accordigly, it is ORDERED tht for inter alia, the motions by the plaintiff, Mark Cohen , and the defendant , Allan Dampf discovery and/or spoilation sanctions, or alternatively, for an order compellng furter disclosure of stated items, are granted to the e)Ctent that the paries shall produce all outstading documents and materials within 30 days of the date of this order, and it is furter ORDERED that the branch of the cross motion by the defendant which is for summar judgment dismissing the plaintiffs complaint is denied , and it is fuer ORDERED the matter shall be set down for a conference before the undersigned on April 2012 , at 9:30 am , during which the Court shall consider inter alia any outstanding issues or disputes relating to the conduct of discovery between the paries. All matters not decided or requests for relief not granted herein are hereby DENIED. The foregoing constitutes the Decision and Order of this Cour. Dated: March 6 , 2012 Mineola, New York EN T E R: Hon. Robert A. Bruo , lS. ENTERED MAR 09 2012 NASSAU COUNTY COUNTY CLERK' S OFfICE F:\DECISIONS 2012\CohOl v Dapf2. wpd Page 4

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