Hinds v Morgan

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Hinds v Morgan 2017 NY Slip Op 33435(U) December 22, 2017 Supreme Court, New York County Docket Number: Index No. 600940/17 Judge: James P. McCormack 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. 600940/2017 FILED: NASSAU COUNTY CLERK 01/03/2018 12:08 PM NYSCEF ,.DOC.- '1NO. 78 RECEIVED NYSCEF: 01/03/2018 SUPREME COURT- STATE OF NEW YORK PRESENT: Honorable James P. McCormack Justice _______________x TRIAL/IAS, PART 27 NASSAU COUNTY JUDY E. HINDS, as Executor of the Estate of EARL H. CLARKE, and JUDY E. HINDS, Individually, Index No. 600940/17 Plaintiff(s), Motion Seq. No.: -againstMotions Submitted: 001, 002 & 003 11/8/17 DANIEL J. MORGAN, M.D., MOUNT SINAI BROOKLYN, and SHEEPSHEAD NURSING AND REHABILITATION CENTER, LLC, Defendant(s). _______________x. The following papers read on this motion: Notices of Motion/Supporting Exhibits ................................ XX Notice of Cross Motion ......................................................... X Affirmation in Opposition ............................................. '. ... ;... X Reply Affirmation ................................................................. X Defendant, Sheepshead Nursing and Rehabilitation Center, LLC (Sheepshead), moves this court (Motion Seq. 001) for an order, pursuant to CPLR §3126, dismissing the complaint, or precluding Plaintiff, Judy Hinds, as Executor of the Estate of Earl H. Clarke, and Judy Hinds Individually (Hinds), from offering evidence at trial, for failure to [* 1] 1 of 6 INDEX NO. 600940/2017 FILED: NASSAU COUNTY CLERK 01/03/2018 12:08 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/03/2018 comply with discovery. In the alternative, Sheepshead seeks an order pursuant to CPLR §3124 compelling Hinds to comply with all outstanding discovery. Mount Sinai Brooklyn (Mount Sinai), cross moves (Motion Seq. 002) for the identical relief against Hinds. Defendant, Daniel J. Morgan, M.D. (Dr. Morgan) moves separately (Motion Seq. 003) for the identical relief against Hinds. Hinds opposes all three motions. ~· Before a motion relating to discovery or bill of particulars can be brought, the movant is required to submit an affirmation of good faith indicating "that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion." 22 NYCRR 202.7(a). The affirmation of good faith is supposed to indicate that the parties consulted over the discovery i_ssues and the "time, place and ' nature of the consultation and the issues discussed ... ", or that such conferral would be futile. 22 NYCRR 202.7(c). The parties are to make a diligent effort to resolve the discovery dispute. (Deutsch v. Grunwald, 110 A.D.3d 949 [2 nd Dept. 2013]; Murphy v. County ofSuffolk, 115 A.D.3d 820 [2 nd Dept. 2014]; Chichilnisky v. Trustees of Columbia ' University in City of New York, 45 A.D.3d 393 [1 st Dept. 2007]). Herein, all three moving papers contain an affirmation of good faith, and all three are insufficient. Sheepshead counsel refers to three "good faith" letters that _were sent, but alludes to no other efforts made. As discussed, infra, letters alone do not satisfy the rule. Counsel for Mount Sinai states: "Defendant has, in good faith, followed up with plaintiff seeking to obtain this discovery, having left multiple telephone messages and having sent numerous 2 [* 2] 2 of 6 INDEX NO. 600940/2017 FILED: NASSAU COUNTY CLERK 01/03/2018 12:08 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/03/2018 good faith letters." Though they provide the letters, the affirmation fails to provide the detail required by the rule. Further, their cross motion is procedurally defective as they cross move against a non-moving party. (CPLR §2215; Terio v. Spodek, 25 A.D.3d 781 [2 nd 2006]); Mango v. Long Is. Jewish-Hillside Med Ctr., 123 A.D.2d 843 [2 nd Dept. 1986]). Dr. Morgan's counsel states "It is respectfully submitted that good faith attempts have been made by the moving defendant to obtain discovery. These attempts include demands regarding the outstanding discovery at court conferences, incorporating said demands into court orders, and serving a good faith letter for outstanding discovery." The fact that counsel have sent "good faith letters" does not satisfy the rule. Courts have found letters alone do not satisfy the good faith requirement. (See Eaton v. Chahal, 146 Misc.2d. 977,983 [N.Y.Sup. 1990] (" ... the court interprets a 'good faith effort' to mean more than an exchange of computer generated form letters or cursory telephone conversation."); Santiago v. Park Ambulance Serv., Inc., 53 Misc.3d 120l(A)[N.Y.Sup. 2016]("Merely sending letters .. .is not sufficient to satisfy the requirement of 22 NYCRR §202.?(c)."); Amherst Synagogue v. Schuele Paint Co., 30 A.D.3d 1055, 1057 [4 th Dept. 2006](sending only letters "'failed to demonstrate that they made a diligent effort to resolve this discovery dispute."', quoting Baez v. Sugrue, 300 A.D.2d 519, 521 [2 nd Dept. 2002]). The problem with simply sending a letter is that a letter will rarely satisfy the requirement that the parties make a "diligent effort" to resolve the dispute. (Deutsch v. 3 [* 3] 3 of 6 INDEX NO. 600940/2017 FILED: NASSAU COUNTY CLERK 01/03/2018 12:08 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/03/2018 Grunwald, supra). While a letter is considered "communication", the rule requires that the affirmation of good faith contain the "time, place and nature of the consultation and the issues discussed ... ". Clearly, the rule requires discussion, and an explanation of what was addressed during the discussion. This court can envision a series of letters, or perhaps emails, between the parties meaningfully addressing these issues and responding to one another's arguments satisfying this requirement, but letters from one party repeatedly pointing out how the other party's responses are deficient does not allow for the exchange of information and negotiation that the rule intends to occur. The parties are required to confer, and consultation is expected to take place. Unless a compelling argument can be made that sending a letter rose to the level of conferring and consultation, the failure to confer is fatal to the affirmation of good faith or other efforts made. (Murphy v. County ofSuffolk, supra; Gonzalez v. International Bus. Machs., Corp., 236 A.D.2d 363 [2 nd Dept. 1997]); Matter of Greenfield v. Board of Assessment for Town of Babylon, 106 A.D.3d 908 [2d Dept. 2013]; Koelbel v. Harvey, 176 A.D.2d 1040 [3 rd Dept. 1991]. It cannot be argued that Defendants herein made "diligent efforts" to resolve the dispute, as required by 22 NYCRR 202.7 by sending letters. For the all foregoing, the court is constrained to deny all three motions as. defective. However, the court is mindful of the fact that the Defendants did make some attempt, via letters, to resolve these issues, and that Hinds only responded to the 4 [* 4] 4 of 6 FILED: NASSAU COUNTY CLERK 01/03/2018 12:08 PM NYSCEF " DOC. NO. 78 INDEX NO. 600940/2017 RECEIVED NYSCEF: 01/03/2018 discovery demands upon being served with the motions herein. While the motions are defective, it is Hinds' fault that motions had to be made at all. Why Hinds had to wait until three motions were brought before providing responses to the demands is frustrating and resulted in an unnecessary wast~ of this court's time, not to mention the parties' time as well. The court will not address whether or not Hinds properly responded to the demands, but acknowledges that at least one of the Defendants submitted a reply affirmation claiming she did not. The motions will be denied without prejudice, but the court urges the parties to have an actual conversation about any further outstanding discovery. If the motions are brought a second time and the court believes that one or more parties did not make a good faith, diligent effort to resolve the issues raised in the motions, or if the court finds that any party failed to properly respond to a demand, the. court will not hesitate to issue sanctions. Accordingly, it is hereby ORDERED, that Sheepshead's motion to strike and compel is DENIED, without prejudice with leave to renew upon proper compliance with 22 NYCRR 202.7 in its entirety; and it is further ORDERED, that Mount Sinai's cross motion to strike and compel is DENIED, without prejudice with leave to renew upon proper compliance with 22 NYCRR 202. 7 in its entirety; and it is further 5 [* 5] 5 of 6 FILED: NASSAU COUNTY CLERK 01/03/2018 12:08 PM NYSCEF DOC. NO. 78 INDEX NO. 600940/2017 RECEIVED NYSCEF: 01/03/2018 ORDERED, that Dr. Morgan's motion to strike and compel is DENIED, without prejudice with leave to renew upon proper compliance with 22 NYCRR 202.7 in its entirety. This constitutes the decision and order of the court. Dated: December 22, 2017 Mineola, New York ENTERE JAN O3 2018 NASSAU COUNTY COUNTY CLERK'S OFFICE 6 [* 6] 6 of 6

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