Nelson v CRP N.Y. Ave. LLC

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Nelson v CRP N.Y. Ave. LLC 2023 NY Slip Op 34207(U) November 28, 2023 Supreme Court, Kings County Docket Number: 11/28/2023 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 522182/2016 FILED: KINGS COUNTY CLERK 11/28/2023 11:36 AM NYSCEF DOC. NO. 373 RECEIVED NYSCEF: 11/28/2023 SUPREME- COURT OF THE STATE OF NEW YORK C.0.UNTY OF KINGS : CIVIL "TERM: CC,P - ----------- ---- ---·--------- ------ ·-· -x GAAN·T N-E:LSON, Decision and order Index No. 522182/2016 Plaintif"f i - against -CRP· N._EW YORK: AVENUE L4-JC', CASTELLAN REAL ESTATE PARTNERS, _.1084 NEW YORK D. LLC; "LT.BERTY. PLACE PROi?_EE,TY .MANAGEMENT·- Ltc:, De f.endan ts.,- Novembe·r 28, 2023 ·-- --· ··-- ------ .------.7-. -------- .-------- .. --·-x PRESE_NT: HON. LEON RUCHE:LSMAN Mot ion Seq. #12 The plciintif f .ha:s mov:ed seeking to strike the de-f enda:rit' s a1tswe-.r__ for the failu.:i::e to provide a _c;ompl_tant jack$--On af-fi_davit pursuant to a court order dated Jariua_ry 30, 2023. Oppose the motion. arguments were h.eld.. The defendants Papers were s1.1bmit:t.ed by the parties a.nd After reviewing all the arguments. 1:his c.ou.rt now makes the fo-.llowirig determination. T_h..e lawsuit .conce-rns the plaintirf ,. who suffe_re.d. t-he loss of a. lung while living: in-. the def endari t' s .alleged mold .;Lnf es-t ed apartment. The pll:l,intiff suffers frorri. ~IDS a:nd the. plaintiff has asserted the defendants were aware of that condition and failed to ,remedy the mold co.nta:ined within the- apartment. B,el-:e-vant to this motion, on Januar·.y 30, 2023 the· court issued ah order requiring thE? _ defendant tq provide "a JaGks.on-complaint a:E:e-ictavit with resp.ect to the records dem_a,nded by plai:nti:l:f which .defendants claim were not found or located 11 J'.anuary ·3q:, 20·2_3 [NYSCEF Oo.c ..No. 2 62]) . [* 1] 1 of 7 ( see,. Order dated tn res.pqnse to the INDEX NO. 522182/2016 FILED: KINGS COUNTY CLERK 11/28/2023 11:36 AM NYSCEF DOC. NO. 373 RECEIVED NYSCEF: 11/28/2023 order the defendants submitted an affidavit of Rosario Ruiz, a senior property manager of the pclaintiff's residence, dated March 31, 2023. Ms. Ruiz: stated that she searched for all relevant documents related to the plaintiff's apartment. The search was conducted by reviewing all the files maintained at the property manager's ,office. The plaintiff has moved arguing the affidav{t is insufficient since it fails to explain "where the trove of missing documents are, including the tenant file, apartment access letters, work Orders, tenant complaints, maintenance a:nd repair records, physical evidence, mold testing, ro,of records, work proposals, in,spection records i emails, computer files, cell phones, and other electronic files" pages 5:, 6 [NYSCEF Doc. No, 316.]) . the answer :should be stricken. (see, Affirmation in Support, Thus, the plaintiff insists The defendants oppose the motion arguing the.re is no further discovery that needs to l:ie provided. conclusions of Law It i:s well settled that the trial court maintains broad discretion concerning the discovery process and any sanction for 177 AD3d 947, 113 NYS3d 232 [2d any violation {Bouri v. Jackson, Dept., 2019)) . The severe. appropriate where sanc.tion of ::;triking a pleading is it can be demonstrated th.at the failure. to comply with discovery was the .result of wilful a.nd contumacious 2 [* 2] 2 of 7 FILED: KINGS COUNTY CLERK 11/28/2023 11:36 AM NYSCEF DOC. NO. 373 INDEX NO. 522182/2016 RECEIVED NYSCEF: 11/28/2023 conduct ( Rosenblatt v .. Franklin Hospital Medical Center, 165 AD3d 862, 85 NYS3d 4 88 [2d Dept., 2018]) . Such conduct may be inferred from a party's actions, specifically a long period of time passing without complying with the di.scovery coupled with the absence of any reasonable excuse to explain: such failure to comply (Morson v. 5899 Realty LLC, 171 AD~d 916, 9!3 NYS3d 127 [2d Dept., 2019]). Generally, the failure of either party to provide sought after discovery and to follow the express order of the court demonstrates a pcl.ttern of wilful default and neglect concerning the outstanding discovery (Espinal v. New York City Health and Hospitals Co·rp., 115 AD3d 641 1 981 NYS2d 569 [2d Dept . ., 2014 J) . The crux of plaintiff's motion is that the defendants failed to provide a compliant Jackson affidavit. The plaintiff £:i.sserts, therefore, that the Jackson af:fidavi t filed is deficient. Specifically, the plaintiff argues the defendants failed to demonstrate whe·te the :subject records were likely kept, what efforts were made to preserve them and whether a search was conducted in every location where the records were 1ikely to be found (see, Jackson v. New York, 185 AD2d 7 68, 58 6 NYS2d 952 [ pt Dept., 1992]). How$ver, Rosario Ruiz, an employee of defendant Liberty Place Property Management LLC, the management company of tl)e owner gave two depositions. On December 17, 2020 she was deposed 3 [* 3] 3 of 7 INDEX NO. 522182/2016 FILED: KINGS COUNTY CLERK 11/28/2023 11:36 AM NYSCEF DOC. NO. 373 RECEIVED NYSCEF: 11/28/2023 and she specifically testified that since the building wherein the plaintiff lived at the time of the lawsuit had since been sold the defendants no longer maintained any files there. St.e was spec:ifically asked whether she spoke to anyone at 1084 or CRP, or Castellan to get access to any files arid she responded "No, because we don't have anything there. There's nothing there, and everything's gone with the building. And my prior boss is no longer in the off.ice" (see, page 27 [NYSCEF Doc. l'ilo. 352]). Deposition of Rosario Ruiz, Again, on page 47 she testified that all physical files "went with the building when the building was sold" (id). Further, on pages 48 and 49 she reiterated that she no longer had any access to the files and that she never spoke with anyone who may have had such access following the sale of the building. On June 15, 2023 she gave another deposition. why she did not review deposition. any She was asked of the tehaht records prior to the She responded ''becc:mse I no longer have the tenant records. The building was sold rriany years a.90" (see, of Rosario Ruiz, page 31 [NYSCEF Doc. No. 299]). Deposition Again, on page 40 Ms, Ruiz testified that "we don 1 t have a tenant file any longer'' {id) . She explained that "when the building was sold all the tenant f il.es go to the new owne.r" ( id) . Again, .on page 4 3 Ms. Ruiz testified that. the defendants no longer have aCCE;!SS to the. tenant's file.• sinc;e "the file.s were left with the new owner" 4 [* 4] 4 of 7 INDEX NO. 522182/2016 FILED: KINGS COUNTY CLERK 11/28/2023 11:36 AM NYSCEF DOC. NO. 373 RECEIVED NYSCEF: 11/28/2023 On the following page she again explained that (id) . ''I don 1 t have access to the file because the tenant file went with the new owners s6 that means Lib.er:ty Property Management doesn't have access to the file" (id). Finally, on page 51 Ms. Ruiz was asked if there was anyone she could have talked to about the tenant files. She responded no and explained "because the files are gone, and we don't have the files, we don 1 t have the application" (id). A deposition was cond~ct~d of Rick Serrapica, employee of Liberty Place Property Management. another He testified and explained that when the building was sold all the tenant files were placed in boxes and presented-to the new owner. When asked whether Liberty Place Property Management had access to the plaintiff's tenant file he responded "we do not" (see, Deposition of Rick Serrapica, page 33 [NYSCEF Doc. No. 354J). Further, a deposition was conducted of Richard Bartolomeo, another employee of Liber·ty Place Property Management. He testified that there were no longer files 0£ any tenants including the plaintiff since the building was sold. Thus, the plaintiff seeks inclusion .of language in a Jackson affidavit that has already beeri the subject of multiple depo~i.tion inquiri.es. ..All the employees .of Liberty have .repeatedly ahd consi'steritly testified that there is no longer a. te.nant file since a.11 tenant files were. giv§!n to the new owner of 5 [* 5] 5 of 7 INDEX NO. 522182/2016 FILED: KINGS COUNTY CLERK 11/28/2023 11:36 AM NYSCEF DOC. NO. 373 the building. RECEIVED NYSCEF: 11/28/2023 Thus, there is nothing in this regard that render,s the Jackson affidavit insufficient or deficient. There is no basis to require Ms. Ruiz to include in an affidavit matters to which she testified numerous times. Further, it is inacqurate to argue there are "missing" documents which are being hidden by the defendants or which the defendants have thus far failed to explain their ~hereabouts. Indeed, the defendants have repeatedly testified there are no further documents in their possession regarding any information pertaining to the plaintiff's apartment. To be sure, the Jackson affidavit merely confirms all the searches conducted to support such testimony. Gonseq:uehtly, there is no basis at all to question the completeness of the Jackson affidavit. Therefore, based op the foregoing, the motion seeking any sanction against the defendants based upon the Jackson affidavit is de'nied. For similar reasons the portion of the motion that seeks a sanction due to the defendants failure to produce a witness with knowledg.e a:bout bousing individuals witb AIDS is denied. Ms. Ruiz and other have te'stified that they do not know whether Liberty was aware of the plaintiff's medical condition when he rented the apartment or any time thereafter. As noted the def:enda:nts cannot. be f aul te::d .fbr the lac:k .of do.cume.nts no longer in. their possE:!ssiori. Likewise, the defendants cannot be faulted for failing to review doc=1,1ments f.or depositions that are not in 6 [* 6] 6 of 7 FILED: KINGS COUNTY CLERK 11/28/2023 11:36 AM NYSCEF DOC. NO. 373 INDEX NO. 522182/2016 RECEIVED NYSCEF: 11/28/2023 thei:c possession. Moreover, the defendants cannot he faulted for not knowing whether the plaintiff may have participated in governmental programs assisting people with AIDS, Since the defendants cannot be faulted for not knowing, the information sought no sanction at a11 is appropriate. Therefore; based on the foregoing~ all of the plaintiff's motions are denied and all motions seeking sanctions are denied. So ordered. ENTER: DATED: November 28, 2023 Brooklyn, N.Y, Hon. JSC 7 [* 7] 7 of 7

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