Adams v 339-347 E. 12th St. Inv., LLC

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Adams v 339-347 E. 12th St. Inv., LLC 2018 NY Slip Op 32053(U) August 21, 2018 Supreme Court, New York County Docket Number: 154453/2013 Judge: Kelly A. O'Neill Levy 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] NEW YORK COUNTY CLERK 08/22/2018 10:23 AM NYSCEF DOC. NO. 100 INDEX NO. 154453/2013 RECEIVED NYSCEF: 08/22/2018 KELLY O'NEILL LEVY JSC SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 19 -----------------------------------------------------------------------------------x VICTOR ADAMS, INDEX NO. 154453/2013 MOTION DATE 07/25/2018 Plaintiff, -v339-347 EAST 12TH STREET INVESTOR, LLC, SARITA'S MACARONI & CHEESE MH, LLC, & SARITA'S MACARONI & CHEESE. INC., MOTION SEQ. NO. 003 DECISION AND ORDER Defendants. -----------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 003) 73, 74, 75, 76, 77, 78, 79, 80,81,82,83,84,85,86,87,88,89,90,91,92,93,94,95,98 DISMISSAL were read on this motion to/for HON. KELLY O'NEILL LEVY: This is a personal injury aGtion for injuries allegedly sustained by plaintiff Victor Adams on the premises owned by defendant 339-347 East 12th Street Investor, LLC (hereinafter, East 12th). East 12th moves for an order, (1) pursuant to CPLR § 3126, dismissing this action based on the grounds that plaintiff Victor Adams failed to comply with the discovery process and court orders, (2) pursuant to CPLR § 3212, granting summary judgment to East 12th on the basis that there are no issues left to be resolved, and (3) pursuant to CPLR § 3126, imposing sanctions against plaintiffs counsel. There is no opposition to this motion. PROCEDURAL BACKGROUND There was a myriad of futile discovery notices, demands, and court orders imposed on plaintiff. On November 15, 2017, the court issued an order directing plaintiff to respond to all outstanding discovery, appear for an IME on February 28, 2018, and stated that preclusion applications would be entertained at the next conference [November 15, 2017 Order (ex. M to the O'Bryan aff.)]. Plaintiff failed to appear for the scheduled IME. On March 14, 2018, the 154453/2013 ADAMS, VICTOR v. 339-347EAST12TH STREET Motion No. 003 2 of 5 Page 1 of4 [*FILED: 2] NEW YORK COUNTY CLERK 08/22/2018 10:23 AM NYSCEF DOC. NO. 100 INDEX NO. 154453/2013 RECEIVED NYSCEF: 08/22/2018 court ordered that plaintiffs IME be rescheduled to March 28, 2018 and should plaintiff again fail to appear he shall be precluded from offering medical evidence at trial [March 14, 2018 Order (ex. N to the O'Bryan aff.)]. On April 11, 2018, the court issued a partial preclusion order stating, "Pursuant to the March 14, 2018 Order and plaintiffs continued failure to appear for an IME on numerous occasions the plaintiff is now precluded from offering medical evidence at trial..." [April 11, 2018 Order (ex. P to the O'Bryan aff.)]. On May 23, 2018, the court granted plaintiffs counsel's application to be relieved as attorney of record and ordered a stay to commence upon plaintiffs counsel's compliance with the order [May 23, 2018 Decision and Order (ex. S to the O'Bryan aff.)]. Plaintiffs counsel failed to comply with the service requirements of the March 23, 2018 decision and order. DISCUSSION CPLR § 3126 Motion to Dismiss CPLR § 3126 (Penalties for refusal to comply with order or to disclose) states, in pertinent part: "If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for disclosure or wil[l]fully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: 1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or 3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party." "[I]t is well settled that the drastic remedy of striking a party's pleading pursuant to CPLR 3126 for failure to comply with a discovery order or request is appropriate only where the 154453/2013 ADAMS, VICTOR v. 339-347EAST12TH STREET Motion No. 003 3 of 5 Page 2 of4 [*FILED: 3] NEW YORK COUNTY CLERK 08/22/2018 10:23 AM NYSCEF DOC. NO. 100 INDEX NO. 154453/2013 RECEIVED NYSCEF: 08/22/2018 moving party conclusively demonstrates that the non-disclosure was willful, contumacious or due to bad faith." McGilvery v. New York City Transit Authority, 213 A.D.2d 322, 324 (1st Dep't 1995). Here, plaintiff repeatedly failed to comply with discovery requests and this court's orders. Plaintiff misused the discovery process in an egregious fashion by failing to provide discovery in any manner for more than one year. Plaintiff never sought an order extending the time in which to provide discovery, to modify the terms of any discovery demand, or seek any alternative relief. The court finds that plaintiff willfully and contumaciously failed to provide discovery in this matter, and thus, it grants East 12th's motion for an order dismissing this action based on plaintiffs failure to comply with the discovery process and court orders. CPLR § 3212 Motion for Summary Judgment East 12th moves, pursuant to CPLR § 3212, for summary judgment in its favor. Because of the court's above dismissal of this action based on plaintiffs failure to comply with the discovery process and court orders, East 12th's motion for summary judgment is denied as moot. Motion for Sanctions East 12th moves for an order imposing sanctions and costs on plaintiffs counsel due to his willful refusal to respond to discovery demands and notices. The court denies this motion for sanctions due to plaintiffs non-cooperation with his counsel throughout the pendency of this action. The court has considered the remaining arguments and finds them to be without merit. For the foregoing reasons, it is hereby ORDERED, that defendant 339-347 East 12th Street Investor, LLC's motion for an order, pursuant to CPLR § 3126, dismissing this action based on plaintiff Victor Adams' failure 154453/2013 ADAMS, VICTOR v. 339-347EAST12TH STREET Motion No. 003 4 of 5 Page 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 08/22/2018 10:23 AM NYSCEF DOC. NO. 100 • j INDEX NO. 154453/2013 RECEIVED NYSCEF: 08/22/2018 to comply with the discovery process and court orders is granted and this action is dismissed in its entirety; and it is further ORDERED, that defendant 339-347 East 12th Street Investor, LLC's motion for an order, pursuant to CPLR § 3212, for summary judgment in its favor is denied; and it is further ORDERED, that defendant 339-347 East 12th Street Investor, LLC's motion for an order, pursuant to CPLR § 3126, imposing sanctions on plaintiffs counsel is denied. The Clerk is directed to enter judgment accordingly. This constitutes the decision and order of the court. 1~G__v ,J.S.C. •DATE KELLY O'NEILL LEVY CHECK ONE: CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 154453/2013 ADAMS, VICTOR v. 339-347EAST12TH STREET Motion No. 003 5 of 5 D D JSC OTHER REFERENCE Page4 of4 \

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