Heins v Public Stor.

[*1] Heins v Public Stor. 2012 NY Slip Op 51374(U) Decided on July 11, 2012 Supreme Court, Suffolk County Rebolini, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 11, 2012
Supreme Court, Suffolk County

Robert Heins, Plaintiff,

against

Public Storage, a Maryland Real Estate Investment Trust, as Successor of Public Storage, Inc. and PS Orangeco, Inc., Defendants.



09608/2008



Attorney for Plaintiff:

Russ & Russ, P.C.

543 Broadway

Massapequa, NY 11758

Attorney for Defendants:

Cullen and Dykman LLP

100 Quentin Roosevelt Boulevard

Garden City, NY 11530

Clerk of the Court

William B. Rebolini, J.

Upon the following papers numbered 1 to 100 read upon this motion to compel disclosure and cross motion to dismiss cause of action: Notice of Motion and supporting papers, 1 - 46; Notice of Cross Motion and supporting papers, 47 - 76; Answering Affidavits and supporting papers, 77 - 98; Replying Affidavits and supporting papers, 99 - 100.

ORDERED that the motion by plaintiff for, inter alia, an order compelling responses to certain demands for disclosure and resolving all issues in plaintiff's favor in connection with his claim under General Business Law §349 is granted to the limited extent set forth herein, and is otherwise denied; and it is

ORDERED that the cross motion by defendants for, inter alia, an order dismissing plaintiff's claim under General Business Law §349 and precluding plaintiff from presenting evidence at trial as to matters that were the subject of certain demands for disclosure to which plaintiff allegedly failed to provide complete responses is granted to the extent set forth herein, and is otherwise denied; and it is

ORDERED that plaintiff shall, within 20 days after service of a copy of this order with notice of entry, serve a new response to defendants' notice of discovery and inspection dated August 19, 2011; and it is

ORDERED that plaintiff and defendants shall serve new interrogatories or properly verified answers to the written interrogatories previously served upon them in accordance with the directions set forth herein; and it is further

ORDERED that the parties' attorneys are directed to appear before this Court at 9:30 a.m. on Wednesday, August 29, 2012 for a preliminary conference.

In August 2004, plaintiff Robert Heins allegedly entered into an agreement with Public Storage, Inc. to lease space at a self-storage facility located on Sunrise Highway in Patchogue, New York. The leased space, measuring approximately 5' x 10' and identified as Enclosed/Parking Space D212, allegedly was used by plaintiff to store various personal items including a record collection, paintings, first edition books and family members' personal effects. The monthly rental charges for the leased space allegedly were paid electronically from a bank account with Bank of America maintained by plaintiff and nonparty Linda Cox. In March 2007, Public Storage allegedly served [*2]a notice advising plaintiff that his property was to be sold at public auction for nonpayment of rental fees. Upon receipt of such notice, Cox allegedly went to the storage facility with bank records showing the rental fee had, in fact, been paid electronically to Public Storage. An employee at the facility allegedly advised Cox that he would show the proof of payment to the manager of the facility, and that plaintiff's account information would be corrected to reflect such payment. On March 15, 2007, Public Storage allegedly notified plaintiff that the February rental payment had been credited to his account. Later that same month, it allegedly sent plaintiff a notice advising that the rate for leasing storage space at the facility was increasing in May 2007.

On March 31, 2007, the personal property stored by plaintiff in the space identified as Enclosed/Parking Space D212 allegedly was auctioned by Public Storage's agent, defendant PS Orangeco, Inc., for a nominal amount. Plaintiff allegedly was out of town on the date of the public auction. On April 2, 2007, Cox allegedly returned to the facility with bank records showing the rent had been paid and was advised that the personal property had been sold. Plaintiff allegedly went to the facility the next day and saw that nearly all of the boxes of personal property stored in the leased space had been removed.

Subsequently, plaintiff commenced this action to recover damages for the alleged wrongful sale of his personal property. The first five causes of action set forth in the Third Amended Complaint seek to hold Public Storage liable under the theories of negligence, conversion, fraud, breach of contract and "wrongful sale" in violation of Lien Law §182. The sixth cause of action seeks to hold both Public Storage and PS Orangeco liable for violations of Lien Law §182 and General Business Law §349. In addition, as part of the fourth cause of action, plaintiff seeks a judgment declaring "the unenforceability or inapplicability of any claimed exculpatory' clauses or limitations of liability or disclaimer in any claimed rental agreement." Defendants' answer denies nearly all of the allegations in the complaint and interposes numerous affirmative defenses including that the sixth cause of action does not make out a cognizable claim for deceptive business practice, as it does not allege a deceptive act or practice directed at the public at large.

On August 19, 2011, defendants served interrogatories and demands for discovery and inspection on plaintiff. Defendants' August 2011 notices of discovery demand an itemized list of the personal property allegedly stored in the leased space over which plaintiff still has possession, an inspection of such items, copies of all documents plaintiff intends to rely upon to prove various claims asserted in the pleadings and copies of "all invoices, receipts, appraisals and other documentation that support plaintiff's claim of damages." Shortly thereafter, plaintiff served each defendant with interrogatories and demands for discovery and inspection dated August 22, 2011. On September 22, 2011, plaintiff served his response to defendants' demand for discovery and inspection and his response to interrogatories. Copies of a prior motion for leave to serve an amended pleading, the supplemental summons and second amended verified complaint, defendants' answers to the second amended verified complaint, the second supplemental summons and the third amended verified complaint were annexed to plaintiff's response to interrogatories. Responses to plaintiffs' disclosure notices were served by defendants in October 2011. Also, by letter to plaintiff's counsel dated October 26, 2011, defendants' counsel detailed various objections to plaintiff's [*3]responses to the interrogatories and the demands for discovery and inspection. In November 2011, plaintiff's counsel sent a letter to defendants' counsel stating he "rejects" defendants' objections. He also served a supplemental response to defendants' interrogatories.

In January 2012, another notice of discovery and inspection was served by defendants. This notice demands itemized lists of the personal property allegedly stored by plaintiff in the leased storage space (D212) that was removed, "discarded, donated or otherwise parted with" by plaintiff on April 3, 2007, as well as a list of the property from the space that plaintiff continues to exercise possession and control over. It also demands an inspection of the personal property that allegedly remained in the leased space following the auction. A response to such demand, dated March 6, 2012, was served by plaintiff. In addition to setting forth general objections, plaintiff's response states as to each of the demands made that "[n]o such document exists and plaintiff is not required to prepared such a document to respond," and that plaintiff's claims in such action "do not relate to the property referred" in the particular demands.

Plaintiff now moves for an order compelling defendants to fully comply with the August 2011 demands for documents and interrogatories, and sanctioning defendants for allegedly failing to comply with such disclosure notices. More particularly, plaintiff seeks an order resolving all issues in his favor on the claim under General Business Law §349 and precluding defendants from presenting evidence "of corporate compliance activities, or internal audit activities, or external audit activities, or efforts to identify or detect noncompliance with law, contracts or industry standards, or training, monitoring, testing or supervision of employees, or any corrective actions arising from compliance activities" based on defendants' alleged failure to comply with the August 2011 disclosure demands. Plaintiff also seeks a conditional order under CPLR 3126 striking the answer and setting the matter down for an inquest in the event defendants disobey this order. Defendants oppose the motion and cross-move for an order dismissing the General Business Law §349 claim for failure to state a cause of action and compelling full compliance with certain demands for disclosure. Defendants also seek sanctions under CPLR 3126 arguing plaintiff should be precluded from presenting evidence at trial as to those matters for which he failed to comply with their demands for documents and interrogatories. The Court notes that legal arguments raised for the first time in reply papers were not considered in the determination of the motions (see Sanz v Discount Auto, 10 AD3d 395 [2d Dept 2004]; Dannasch v Bifulco, 184 AD2d 415 [1st Dept 1992]; Ritt v Lenox Hill Hosp., 182 AD2d 560 [1st Dept 1992]).

The branch of defendants' motion seeking dismissal of the claim against them for violation of General Business Law §349 is granted. On a motion to dismiss, "the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference", and the court is to determine only whether the facts as alleged fit within any cognizable legal theory (see, EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Thomas v Lasalle Bank N. A., 79 AD3d 1015, 1017, [2d Dept 2010]). When a party moves under CPLR 3211(a)(7) for dismissal based on the failure to state a cause of action, the initial test is whether the pleading states a cause of action, not whether the plaintiff has a cause of action (see, Guggenheimer v Ginzburg, 43 NY2d 268, 275 [*4][1977]; Sokol v Leader, 74 AD3d 1180, 1180-1181 [2d Dept 2010]). However, in assessing such a motion, a court may consider affidavits submitted to remedy pleading defects, thereby preserving "inartfully pleaded, but potentially meritorious, claims" (Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]). If such evidentiary material is considered by the court, the test is whether plaintiff has a cause of action, not whether he or she has stated one in the complaint (Guggenheimer v Ginzburg, 43 NY2d 268, 275; Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 AD3d 530 [2d Dept 2007]). "Whether a plaintiff can ultimately establish [his or her] allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19; see Rovello v Orofino Realty Co., 40 NY2d 633).

General Business Law §349 (a) provides that it is unlawful to perform "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state." Enacted to protect consumers, the statute initially was enforceable only by the Attorney General. However, to expand its use as a means of halting consumer frauds, the statute later was amended to allow actions by private plaintiffs, who may recover compensatory damages, limited punitive damages, injunctive relief and attorneys fees (General Business Law §349 [h]; Karlin v IVF Am., 93 NY2d 282, 291 [1999]). To assert a claim under General Business Law §349 (h), a plaintiff must allege that the defendant engaged in consumer-oriented conduct that is materially misleading, and that plaintiff suffered injury as a result of such deceptive act or practice (City of New York v Smokes-Spirits.Com, Inc., 12 NY3d 616, 621 [2009]; see Stutman v Chemical Bank, 95 NY2d 24 [2000]; Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20 [1995]; Emigrant Mtge, Co., Inc, v Fitzpatrick, 95 AD3d 1169 [2d Dept 2012]). A plaintiff suing for deceptive acts or practices "need not show that the defendant committed the complained-of acts repeatedly . . . but instead must demonstrate that the acts or practices have a broader impact on customers at large" (Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25; see New York Univ. v Continental Ins. Co., 87 NY2d 308 [1995]). A plaintiff also must establish that the defendant "intended to deceive its customers to the customers' detriment and was successful in doing so" (Samiento v World Yacht Inc., 10 NY3d 70, 81 [2008]). Significantly, the statute is not intended to turn a breach of contract into a tort (Teller v Billy Hayes, Ltd., 213 AD2d 141, 148, [2d Dept 1995]), and private contract disputes unique to the parties do not fall within its ambit (Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25).

Here, the amended complaint does not allege that defendants committed deceptive acts or practices that had a broad impact on consumers at large (see Promatech, Inc. v AFG Group, Inc., 95 AD3d 450 [1st Dept 2012]; Makuch v New York Cent. Mut. Fire Ins. Co., 12 AD3d 1110 [4th Dept 2004]; cf. Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314 [2002]). Significantly, the complaint does not allege that Public Storage engaged in deceptive conduct likely to mislead consumers leasing storage space at its facility and that such conduct caused plaintiff's injury (see Gale v International Bus. Machines Corp., 9 AD3d 446 [2d Dept 2004]; Andre Strishak & Assoc. v Hewlett Packard Co., 300 AD2d 608 [2d Dept 2002]; cf. Karlin v IVF Am., 93 NY2d 292). In fact, the complaint does not set forth the terms of the lease agreement allegedly entered into by plaintiff and Public Storage, nor does it allege that such agreement was a standard form regularly [*5]used for customers of Public Storage. Instead, the allegations set forth in the sixth cause of action are based on the alleged breach by Public Storage of its statutory obligations under section 182 of the Lien Law when enforcing its lien upon plaintiff's personal property. In view of this determination, the branch of plaintiff's motion seeking an order resolving all issues in his favor on the claim under General Business Law § 349 and precluding defendants from presenting evidence at trial as to certain corporate activities is denied.

As to the branches of plaintiff's and defendants' motions seeking an order compelling disclosure, parties to litigation are entitled to "full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof" (CPLR 3101[a]). This provision has been liberally construed to require disclosure "of any facts bearing on the controversy which will assist [the parties'] preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). "If there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered evidence material . . . in the prosecution or defense'" (Id. at 407, quoting CPLR 3101). Nonetheless, litigants do not have carte blanche to demand production of any documents or other tangible items that they speculate might contain useful information (see Geffner v Mercy Med. Ctr., 83 AD3d 998 [2d Dept 2011]; Foster v Herbert Slepoy Corp., 74 AD3d 1139 [2d Dept 2010]; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531 [2d Dept 2007]; Vyas v Campbell, 4 AD3d 417 [2d Dept 2004]). Thus, a party will not be compelled to comply with disclosure demands that are unduly burdensome, lack specificity, seek privileged material or irrelevant information, or are otherwise improper (see e.g. Geffner v Mercy Med. Ctr., 83 AD3d 998 [2d Dept 2011]; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531 [2d Dept 2007]; Astudillo v St. Francis-Beacon Extended Care Facility, Inc., 12 AD3d 469 [2d Dept 2004]; Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420 [2d Dept 1989]).

However, the failure of a party to challenge a notice for discovery and inspection within the time specified by CPLR 3122 forecloses inquiry into the propriety of the information sought except as material which is privileged under CPLR 3101 or demands which are palpably improper (see Accent Collections, Inc. v Cappelli Enters., Inc., 94 AD3d 1026 [2d Dept 2012]; Giano v Ioannou, 78 AD3d 768 [2d Dept 2010]; Otto v Triangle Aviation Servs., 258 AD2d 448 [2d Dept 1999]; Titleserv, Inc. v Zenobio, 210 AD2d 314 [2d Dept 1994]). A disclosure request will be considered palpably improper if it seeks information of a confidential and private nature that does not appear to be relevant to the issues in the case, is vague, or is overly board and burdensome (see Accent Collections, Inc. v Cappelli Enters., Inc., 94 AD3d 1026 [2d Dept 2012]; Velez v South Nine Realty Corp., 32 AD3d 1017 [2d Dept 2006]; Holness v Crysler Corp., 220 AD2d 721 [2d Dept 1995]; Zambelis v Nicholas, 92 AD2d 936 [2d Dept 1983]). As defendants failed to timely challenge plaintiff's August 2011 notices of discovery and inspection, the Court must consider whether the requests contained in such notices sought privileged material or were palpably improper (see Giano v Ioannou, 78 AD3d 768 [2d Dept 2010]; Otto v Triangle Aviation Servs., 258 AD2d 448 [2d Dept 1999]).

Plaintiff's application for an order compelling "full and complete responses" to his August [*6]2011 demands for disclosure and inspection is denied. Initially, it is noted that plaintiff's attorney failed to explain in his supporting affirmation the specific bases for his claim that the evidence concerning defendants' personnel and corporate activities demanded in the August 2011 disclosure notices do not seek privileged material and are not palpably improper. Instead, plaintiff's counsel annexed copies of defendants' responses to plaintiff's demands for discovery and inspection, which include typed comments he added after the response given by defendants to each item demanded. Here, plaintiff's sweeping demands for, among other things, "corporate compliance reports, internal audit reports, risk management reports . . . general or in-house counsel reports . . . supporting any of the answers to interrogatories," "[m]inutes of meetings of [Public Storage's] Board of Directors or Board committees or executives referring to problems with . . . accounting of customer payments . . . public sales in New York . . . auctions in New York," and documents "referring to or relating to" to Public Storage's "rules, policies and procedures with regard to alleged delinquent accounts" are palpably improper, as they seek internal business records containing privileged material and corporate documents that are confidential and not relevant to the instant litigation, especially in light of the dismissal of the claim for deceptive business practices (see Astudillo v St. Francis-Beacon Extended Care Facility, Inc., 12 AD3d 469 [2d Dept 2004]; Community Dev. Assn. v Warren-Hoffman & Assoc., 4 AD3d 755 [4th Dept 2004]; Bettan v Geico Gen. Ins. Co., 296 AD2d 469 [2d Dept 2002], lv dismissed 99 NY2d 552 [2002]; Saratoga Harness Racing v Roemer, 274 AD2d 887 [3d Dept 2000]; Wood v Sardi's Rest. Corp., 47 AD2d 870 [1st Dept 1975]; see also Merkos L'Inyonei Chinuch, Inc. v Sharf, 59 AD3d 408 [2d Dept 2009]; First Am. Commercial Bancorp, Inc. v Saatchi & Saatchi Rowland, Inc., 56 AD3d 1137 [4th Dept 2008]). In addition, plaintiff does not dispute defendants' argument that, pursuant to a confidentiality agreement, they already produced witnesses and documents responsive to such demands, or explain why such disclosure is insufficient. It is noted that "[t]he burden of serving a proper demand is on counsel, and it is not for the courts to correct a palpably bad one" (Lopez v Huntington Autohaus, 150 AD2d 351, 352 [2d Dept 1989]).

Defendants' application for an order compelling complete responses to their notice of discovery and inspection dated August 19, 2011 is granted. As plaintiff failed to serve an objection to defendants' August 2011 notice of discovery and inspection, the Court need only consider whether the requests contained therein sought privileged material or were palpably improper (see Giano v Ioannou, 78 AD3d 768 [2d Dept 2010]; Otto v Triangle Aviation Servs., 258 AD2d 448 [2d Dept 1999]). Contrary to the conclusory allegations by plaintiff's counsel, defendants' demand for access to the personal property stored in the leased space remaining in plaintiff's possession or control after the auction is not palpably improper, as such evidence clearly is relevant to their defense of this action. Further, defendants' demands in the August 2011 notice for copies of the specific documents in plaintiff's possession that support the elements of his causes of action, including damages, properly seek evidence "material and necessary" to the defense (CPLR 3101; see generally Allen v Crowell-Collier Publ. Co., 21 NY2d 403 [1968]). Therefore, plaintiff's identical responses to the demands numbered 3 through 24 in the August 2011 notice that "[a]ll documents produced to date in this case and any additional documents produced by defendant" and that he has no additional documents "at this time" are insufficient to meet his obligation under CPLR 3101, as are his additional responses to the demands numbered 23 and 24 that he "will rely on publicly available [*7]financial and other information, reports and public announcements relating to the companies."

As to defendants' demand in the August 2011 notice for an itemized list of the personal property stored in the leased space over which plaintiff currently retains possession and control, items must be preexisting and tangible to be subject to discovery and production, and a party cannot be compelled to create new documents or items in response to a disclosure demand (Rosado v Mercedes-Benz of N. Am., 103 AD2d 395, 398 [2d Dept 1984]; see Feretich v Parsons Hosp., 88 AD2d 903 [2d Dept 1982]; Slavenburg Corp. v North Shore Equities, 76 AD2d 769 [1st Dept 1980]). Thus, a party may be required to produce only those items "which are in the possession, custody or control" of that party (see CPLR 3120 [1]; Gatz v Layburn, 9 AD3d 348 [2d Dept 2004]; Castillo v Henry Schein, Inc., 259 AD2d 651 [2d Dept 1999]; Forestire v Inter-Stop, Inc., 211 AD2d 751 [2d Dept 1995]; Lear v New York Helicopter Corp., 190 AD2d 7 [2d Dept 1993]; Rosado v Mercedes-Benz of N. Am.,103 AD2d 395 [2d Dept 1984]). Here, plaintiff's response to the August 2011 notice does not state whether such a list does, in fact, exist. However, the same demand was made in the January 2012 notice of discovery and inspection, to which plaintiff answered that no such document exists. Likewise, plaintiff responded to the two other demands for lists made in the January 2012 notice that no such documents exist. Defendants have not presented any evidence controverting these assertions. It is noted that while a party cannot be sanctioned for failing to produce documents or other tangible items that do not exist or are not in its possession (Forman v Jamesway Corp., 175 AD2d 514, 515 [3d Dept 1991]; see Bivona v Trump Marina Casino Hotel Resort, 11 AD3d 574 [2d Dept 2004]; Byrne v City of New York, 301 AD2d 489 [2d Dept 2003]), a party's failure to timely produce documents within its possession or control precludes that party from using such documents at trial (see Sagiv v Gamache, 26 AD3d 368 [2d Dept 2006]; Lauro v Top of Class Caterers, 169 AD2d 708 [2d Dept 1991]; Corriel v Volkswagon of Am., 127 AD2d 729 [2d Dept 1987]). As to the demand in the January 2012 notice of discovery and inspection to inspect the items of personal property from the storage unit currently in his possession or control, plaintiff' s response that his "claims do not relate to the property referred to in Demand No.4" was improper (see CPLR 3101, 3120).

Accordingly, plaintiff, within 20 days after service of a copy of this order with notice of entry, shall serve a new response to defendants' August 19, 2011 notice of discovery and inspection which fully answers demands numbered 3 to 24. Copies of all requested documents in plaintiff's possession shall be supplied at such time, and plaintiff's counsel shall arrange for an inspection of the items of personal property remaining in the storage area after the auction presently in plaintiff's possession or control.

Plaintiff's and defendants' applications for orders compelling answers to previously served written interrogatories are granted to the extent set forth herein. Pursuant to CPLR 3133, if the party served with interrogatories is a corporation, the answers to such interrogatories shall be in writing, under oath, "by an officer, director, member, agent or employee having the information." Here, the responses to plaintiff's interrogatories served by Public Storage and PS Orangeco do not comply with CPLR 3133, as they were answered by their attorney acting "upon information and belief," rather than by an officer, agent or employee with the requisite knowledge. Likewise, plaintiff's answers [*8]to defendants' written interrogatories were improperly furnished by his attorney. It is noted that plaintiff's verification of the supplemental response to defendants' interrogatories did not cure such defect.

As the relevant scope of disclosure has changed with the dismissal of plaintiff's claim under General Business Law §349, the parties may, within 30 days after service of a copy of this order with notice of entry, serve new written interrogatories. Each parties' attorney shall advise the attorney for the opposing party within 10 days of service of a copy of this order with notice of entry whether new sets of interrogatories will be served. In the event a party chooses not to serve new interrogatories, answers to previously served interrogatories, verified in accordance with CPLR 3133(b), shall be served within 30 days after service of a copy of this order with notice of entry.

The branches of the motions seeking sanctions under CPLR 3126 are denied at this time, without prejudice. Although actions should be resolved on the merits whenever possible (see Ingoglia v Barnes & Noble Coll. Booksellers, Inc., 48 AD3d 636 [2d Dept 2008]; Pascarelli v City of New York, 16 AD3d 472 [2d Dept 2005]; Cruzatti v St. Mary's Hosp., 193 AD2d 579 [2d Dept 1993]), a court may strike a pleading or impose other sanctions against a party who "refuses to obey an order for disclosure or willfully fails to disclose information which the court finds should have been disclosed" (CPLR 3126; see Dank v Sears Holding Mgt. Corp.,69 AD3d 557 [2d Dept 2010]; Byam v City of New York, 68 AD3d 798 [2d Dept 2009]; Stinton v Robin's Wood, Inc., 45 AD3d 203 [2d Dept 2007], lv denied 10 NY3d 708 [2008]; Mendez v City of New York, 7 AD3d 766 [2d Dept 2004]). A party seeking the drastic sanction of striking a pleading has the initial burden of coming forward with evidence clearly showing that the failure to comply with disclosure orders or discovery demands was willful, contumacious or in bad faith (see Conciatori v Port Auth. of NY & N.J., 46 AD3d 501 [2d Dept 2007]; Shapiro v Kurtzman, 32 AD3d 508 [2d Dept 2006]). Willful and contumacious conduct may be inferred from a party's repeated failure to adequately respond to discovery demands or to comply with disclosure orders, coupled with inadequate excuses for such default (see Montemurro v Memorial Sloan-Kettering Cancer Ctr., 94 AD3d 1066 [2d Dept 2012]; Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798 [2d Dept 2010]; Dank v Sears Holding Mgt. Corp., 69 AD3d 557 [2d Dept 2010); McArthur v New York City Hous. Auth., 48 AD3d 431 [2d Dept 2008]; Devito v J & J Towing, Inc., 17 AD3d 624 [2d Dept 2005]). Here, both plaintiff and defendants failed to demonstrate the opposing party or parties willfully failed to comply with their respective discovery demands (cf. Mangru v Schering Corp., 90 AD3d 621 [2d Dept 2011], lv denied 2012 NY Slip Op. 75842 [2012]; Romeo v Barrella, 82 AD3d 1071 [2d Dept], lv dismissed 17 NY3d 935 [2011]; Brown v Astoria Fed. Sav., 51 AD3d 961 [2d Dept 2008], lv denied 11 NY3d 703 [2008]).

Finally, as a review of the Court's computerized records shows a preliminary conference has not been held in this action, the parties' counsel are directed to appear at 9:30 a.m. on Wednesday, August 29, 2012 for such a conference. [*9]

Dated:July 11, 2012

HON. WILLIAM B. REBOLINI, J.S.C.