Flores v New Line IX Realty Corp.

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Flores v New Line IX Realty Corp. 2015 NY Slip Op 32667(U) July 9, 2015 Supreme Court, Bronx County Docket Number: 350662-2009 Judge: Laura G. Douglas Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED Jul 16 2015 Bronx Co~tuc SUPREME COURT_ COUNTY OF BRONX 1.-- PART 11 -- - - SUPREME COURT OF THE ST ATE OF NEW YORK COUNTY OF BRONX: : Case Disposed 0 i Settle Ord 0 Sched - Appearance 0 I -------------------------------------------------------------------X L--J~----------- 1 - ____ Index Ng. FLORES,ARELIE Hon ..LAURA DOUGLAS -against- NEW LINE IX REALTY Justice. · -------------------------------------------------------------------X 2_ The following papers numbered I to Read on this motion, PRECLUDE ,nn Noticed on A ·108 2015 and dUIY SUbml'tted as N o. I on the Mot' Caendaro f 10n I PAPERS NUMBERED Answering Affidavit and Exhibits (t_) (z) Replying Affidavit and Exhibits (~ Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed Affidavits and Exhibits Pleadings - Exhibit Stipulation(s) - Referee's Report - Minutes Filed Papers Memoranda of Law Upon the foregoing papers this \al MV-hoV\ l S W d~ct J~ ;+it +k Dec! s; o V\ 12_ }0 ttcu:J d o._ _a_ r cle-r. r "1. i 6 2tJt5 .. ated: Hon. ~ LAURA nOULAs 'J.S.C. I [* 2] FILED Jul 16 2015 Bronx County Clerk SUPREME COURT OF THE STATE OF NE\IVYOHK COUNTY OF BRONX: CIVIL TERM, PART 'i 1 --------------------------------------------------------------------------x ARELIE FLORES, TEODORO Fl.ORES and JOSEPH FLORES, infants by their mother and natural guardian SILVIA HERNANDEZ, and SILVIA HERNANDEZ, Individually, Plaintiffs, Index No.350662-2009 DECISION ANO ORDER - against NEW LINE IX REALTY CORP., CATHEDRAL PROPERTIES LLC, R& R MANAGEMENT SERVICES CORP., WAL TON PROPERTIES, INC., PRIME REAL TY SERVICES, PRIME RESIDENTIAL MANHATTAN R&R I LLC, PRIME RESIDENTIAL MANHATTAN R&R II LLC, PRIME RESIDENTIAL MANHATTAN R&R Ill LLC, PRIME RESIDENTIAL BRONX R&R I LLC, PRIME RESIDENTIAL BRONX R&R II LLC, PRIME RESIDENTIAL BRONX R&R Ill LLC, PRIME RESIDENTIAL BRONX R&R IV LLC, PRIME RESIDENTIAL BRONX R&R V LLC, RICHARD AIDEKMAN, ROBERT KLIGERMAN, PRIME REAL TY SERVICES INC., PRIME RESIDENTIAL R&R HOLDINGS LLC, ANDREW GREEN, THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, PRUDENTIAL REAL ESTATE INVESTMENTS, STEVEN B. LABOLD, MUL Tl-DWELLING PROPERTIES IV LLC, EAST 102 REAL TY LLC, THE PINNACLE GROUP, THE PRAEDIUM GROUP LLC, 133 SEAMAN REAL TY LLC, ~ 6 MARBLE HILL REAL TY LLC, 240 SEAMAN REALTY LLC, 30 SEAMAN REALTY LLC, 88 SEAMAN REAL TY LLC, 91 REALTY LLC, ADRIAN REAL TY LLC, CATHEDRAL REALTY LLC, JACOBUS REAL TY LLC, PINEHURST REALTY LLC, WEST 106 REALTY LLC, P V MANHATTAN II LLC, FRANKP. PATAFIO, 171 EAST 102No LLC, SANDRO ESCADON, AVELINO 0. CASTILLO, BELCUT CORP., FELICE BELFIORE, 4464 PARK AVENUE LLC, FINGER MANAGEMENT CORP., RONALD J. FINGER, JOSEPH BOVARO, MATTHEW BERENSOM AND JESUS MANON Defendants. -------------------------------------------------------------------------- x HON. LAURA G. DOUGLAS: Plaintiffs seek an order pursuant to CPLR § 3126 precluding defendants [* 3] FILED Jul 16 2015 Bronx County Clerk Cathedral Properties LLC, R&R Manag~ment Services Corp., and Walton Properties, Inc. (coliectively, "Cathedral") from offering evidence at trial as to all issues of liability. The motion is granted solely as ordered below, and is otherwise denied. The plaintiffs seek monetary damages for injuries purportedly sustained through exposure to lead-based paint at several different premises owned by Cathedral during the period of July 9, 1996 to July 30, 1999. The plaintiffs commenced this action on or about November 13, 2009. Cathedral's counsel avers that Cathedral Properties LLC dissolved on September 20, 2000, R&R Management Services dissolved on September 20, 2001, and Walton Properties, Inc dissolved on April 9, 200 I. As a result, there are no known principals to provide information and assist in the defense of this action and no documents relative to the premises. Any tenant files and other documentation relating to the property were apparently transferred to the subsequent landlord and/or management company in July 1999. It is undisputed that Cathedral has failed to produce a witness for a court-ordereJ., deposition. Plaintiffs submit that they would be significantly prejudiced if Cathedral is permitted to offer evidence at trial as to liability, since Cathedral has not furnished discovery or any witnesses for deposition, and that an order precluding Cathedral from offering any evidence at trial as to liability is an appropriate sanction. Cathedral argues that preclusion is too drastic a sanction in this case, since Cathedral did not deliberately fail to produce witnesses for deposition. Instead, no witness was ever available, since 2 [* 4] FILED Jul 16 2015 Bronx County Clerk ' each of the Cathedral entities has been dissolved for nearly 15 years. In addition, Cathedral argues that while plaintiffs never requested the names or addresses of any former Cathedral employees for the purpose of seeking a non-party deposition, Cathedral has provided the name and address of former employee, Dominick Guarna, so that plaintiffs may arrange a non-part'/ deposition, if they so choose. Precluding a party from presenting evidence at trial is a severe sanction which generally requires a showing that a party's lack of cooperation with discovery was willful, deliberate, or contumacious (see Jennings v. Orange Regional Medical Center, 104 AD3d 654 [2"d Dept 2013]). Here, Cathedral has been unable to produce a witness for deposition because the corporate defendants at issue have been dissolved for almost 15 years. Therefore, the preclusion of all evidence at trial as to the issue of liability is too drastic a sanction in this case (see Healy v. ARP Cable, 299 AD2d 152 [1 •1 Dept 2002]). A more appropriate sanction is to preclude the testimony of any Cathedral party witness at trial. With respect to Cathedral's failure to provide any discovery, the appropriate sanction is to preclude Cathedral from introducing any documentary evidence at trial unless such evidence was provided to plaintiffs at least 60 days prior to trial. Accordingly, it is hereby ORDERED, that the Cathedral defendants are precluded from producing any party witnesses at the trial of this action; and it is further ORDERED, that the Cathedral defendants are precluded from offering any 3 [* 5] FILED Jul 16 2015 Bronx County Clerk •' documentary evidence at the trial of this action, unless such evidence has been provided to plaintiffs at least 90 days before trial. This constitutes the decision and order of this Court. Dated: July ~, 2015 4

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