Kayantas v Restaurant Depot, LLC

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Kayantas v Restaurant Depot, LLC 2017 NY Slip Op 33154(U) December 8, 2017 Supreme Court, Nassau County Docket Number: 603995/15 Judge: Antonio I. Brandveen 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. [*FILED: 1] NASSAU COUNTY CLERK 12/12/2017 NYSCEF DOC. NO. 105 INDEX NO. 603995/2015 RECEIVED NYSCEF: 12/13/2017 SI lORT FORM ORDER SUPREME COURT - STA TE OF NEW YORK Present: ANTONIO I. l3RANDVEEN 1. S. C. P/\NAGIOTA KAYANTAS AS THE /\DMINISTRATOR OF THE EST/\TE OF KOSTAS KAY ANTAS, TRJAL I IAS PART 31 NASSAU COUNTY Index No. 603995/ l S Plaintiff, Motion Sequence No. 006 - against REST/\URANT DEPOT, LLC, Defendant. The following papers hav ing been read on this motion: Notice of Motion, Affidavits, & Exhibits ............... _ __;lo.___ Answering Affidavits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - --=2=---Replying Affidavits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ---=3_ _ Briefs: Plaintiffs I Petitioner's ......... . . . ......... . Defendant's I Respondent's ........ ....... ... . The plaintiff moves pursuant to CPLR 3 126 to strike the defendants' answer for the fa ilure to prov ide discovery, and to preclude the defendant from offering any evidence at the time of trial. The p laintiff also moves to extend the p laintiffs time to file the note of issue. The defendant opposes the motion. The plaintiff asserted the defendants wi llfu lly and contumaciously resorted to dilatory tactics to prolong the litigation, and hindered the plaintiffs abil ity to prosecute this acti on. The p laintiff enumerates various incidents of the defendants' noncompliance 1 of 4 [*FILED: 2] NASSAU COUNTY CLERK 12/12/2017 NYSCEF DOC. NO. 105 INDEX NO. 603995/2015 RECEIVED NYSCEF: 12/13/2017 with court orders. including adjournments due to the defendant' s fai lure to produce a witness for scheduled depositions. The plaintiff avers the informati on sought is relevant, material, exclusively within the defendants ' possession and control, and without it the plaintiff cannot adequately prosecute this matter. The defendant asserts the defense responded to all discovery demands, and produced witnesses with actual knowledge of the circumstances and the occurrence. The defendant avers a majority of the plaintiff's demands arc over broad, unduly burdensome. irrelevant and could not be expected to lead to the discovery of any admi ss ible evid ence. In reply to the defense opposition, the plaintiff points out this motion is the third application for the same relief. The plaintiff asserts the defendant hindered, delayed, ignored the plaintiff s certified letters, phone calls and motions w ithout a reasonable excuse. The law requires " full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proor' (CPL R 3 10 J) . The Court determines the plaintiff sati sfi es the burde n for conditionally striking th e defendants' answer for the failure to prov ide discovery, and precluding the defendant from offering any evidence at the time of trial. The matters sought by the plaintiff from the defendant are material and necessary in the prosecution of this personal injury action. T he plaintiff proffers a good faith showing of attempts to resolve the discovery dispute with the defendants, and shows the di scovery is relevant, material, exclus ively w ithin the Page 2 of 4 2 of 4 [*FILED: 3] NASSAU COUNTY CLERK 12/12/2017 NYSCEF DOC. NO. 105 INDEX NO. 603995/2015 RECEIVED NYSCEF: 12/13/2017 defendants' possession and control, and without it the plaintiff cannot adequately prosecute this matter. The plaintiff clearly demonstrates the defendant acted in a pattern of wi llful and contumacious conduct or its equivalent in failing to provide the discovery recited in the plaintiffs moving papers (Batez v. Baez, 299 A.D.2d 382 [2d Dept 20021). That conduct was in contravention to court orders and conference directives. The plaintiffs discovery demands are supported by documentation for material and relevant information which will lead to genuine admissible evidence at the time of trial. The Court denies that branch of the motion seeking to extend the plaintifr s time to file the note of issue. In opposition, the defendant fails to provide a reasonable excuse or explanation for not providing the discovery. The defense shows awareness of the plainti ITs demand dated May 25, 2017, but has not complied with it. The defense is also aware of the plaintifrs demand dated June 22, 2017, which request an authorization for prior claims of trip and fall incidents in the aisles of the subject restaurant. That information is not privileged, work created by the defense for litigation or attorney work product. The defense failed to properly raise objections to the plaintiffs demands for discovery and inspection dated April 27, 2017, May 25, 2017 and June 22, 20 17 ORDERED that the motion is GRANTED to strike the defendants' answer for the failure to provide all discovery demanded by the plaintiff without exception, and to preclude the defendant from offering any evidence at the time of trial unless the Page 3 of 4 3 of 4 [*FILED: 4] NASSAU COUNTY CLERK 12/12/2017 INDEX NO. 603995/2015 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 12/13/2017 defendant fully complies the plaintiffs demands dated April 27, 2017, May 25, 201 7 and June 22, 20 17 within 30 days after service of a copy of this order with notice of entry by the plaintiff's attorney upon the defense attorney. This decision will constitute the decision and order of the Court. All app licat ions not speci fica lly addressed are denied. So ordered. Dated: December 8, 2017 ENTER: J. S. C. NON FlNAL DISPOSITION ENTERED DEC I 2 2017 NASSAU COUNTY COUNTY CLERK'S OFFICE Page 4 of 4 4 of 4

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