TSFV Holdings, LLC v Mulberry Dev., LLC

[*1] TSFV Holdings, LLC v Mulberry Dev., LLC 2018 NY Slip Op 50705(U) Decided on May 17, 2018 Supreme Court, New York County Reed, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 17, 2018
Supreme Court, New York County

TSFV Holdings, LLC, on its own behalf and on behalf of Peak Performance NYC, LLC, Plaintiff,

against

Mulberry Development, LLC and Robert Lavecchia, Defendants.



652865/2016



For Plaintiff:
Morrison Cohen, LLP
909 Third Avenue
New York, NY 10022
By: Valerie Sirota, Esq.

For Defendants:
Zisholz & Zisholz, LLP
170 Old County Road, Suite 300
Mineola, NY 11501
New York, NY 10017
By: Michelle Cheng, Esq.
Robert R. Reed, J.

Granted in part and denied in part.

Plaintiff, TSFV HOLDINGS, LLC ("TSFV"), brings this breach of contract action against defendants Mulberry Development LLC and Robert Lavecchia (collectively "Mulberry Defendants"). TSFV moves, pursuant to CPLR 312, to compel a supplementary response to plaintiff's document demand dated October 13, 2016. TSFV also moves, pursuant to CPLR 3124, to compel Mulberry Defendants to either admit or deny the notice to admit dated April 10, 2017, or, alternatively, pursuant to CPLR 3123, for a finding that the requests to admit are deemed admitted due to non-responsiveness. Additionally, TSFV moves, pursuant to CPLR 3126, for an award of sanctions in the sum of attorneys' fees and costs resulting from defendants' purported non-responsiveness to plaintiff's document demand and notice to admit. Finally, TSFV moves, pursuant to CPLR 602(a), to consolidate this action with Mulberry Development LLC v. Peak Performance LLC, Index No. 155548/2016, for discovery purposes only. Mulberry Defendants do not oppose the part of the motion seeking consolidation.

NOTICE TO ADMIT & DOCUMENT DEMAND

TSFV moves, pursuant to CPLR 3124, to compel Mulberry Defendants to either admit or deny items numbered 2-5, 8-24, 40, and 45-146 of the notice to admit dated April 10, 2017, or, alternatively, pursuant to CPLR 3123, for a finding that the numbered items are deemed admitted due to Mulberry Defendants' lack of response. The purpose of a notice to admit, pursuant to CPLR 3123(a), is to eliminate from the litigation factual matters which will not be in dispute, not to obtain information in lieu of other disclosure devices (see Taylor v. Blair, 116 AD2d 204). It is to be used only for disposing of uncontroverted questions of fact or those that are easily provable, and not for the purpose of compelling admission of fundamental and material issues or ultimate facts that can only be resolved after a full trial (see CPLR 3123; see also The Hawthorne Group, LLC v. RRE Ventures, 7 AD3d 320). It may not be employed to request admission of material issues or ultimate or conclusory facts (see Mindy Lewis v. The Hertz Corporation, 193 AD2d 470). Here, plaintiff's notice to admit seeks admissions on fundamental and material issues in contention. Additionally, TSFV makes 146 requests in its notice to admit. While a few proper requests may be interspersed in the notice to admit, it is not the court's obligation to prune these discovery devices (see Sidney Kimmel v. Paul, Weiss, Rifkind, Wharton & Garrison, 214 AD2d 453). Accordingly, plaintiff's motion to compel Mulberry Defendants to admit or deny specifically numbered items in the notice to admit dated April 10, 2017 is denied.

TSFV also moves, pursuant to CPLR 312, to compel defendants to provide a supplemental response to a demand for discovery related to all documents for the construction project in dispute. "Trial courts have broad discretion in supervising disclosure and . limiting or denying discovery, especially when compliance would be unduly burdensome" (see Kavanagh v. Ogden Allied Maintenance Corp., 92 NY2d 952). Accordingly, plaintiff's motion to compel defendants to supplement their response to the document demand dated October 13, 2016 — which does not specify what particular documents are being sought — is also denied.

CONSOLIDATION

Finally, TSFV moves, pursuant to CPLR 602(a), to consolidate this action with Mulberry Development LLC v. Peak Performance LLC, Index No. 155548/2016, for discovery purposes only. Defendants do not oppose. Both actions involve the same parties and present a similar set of facts. Consolidation of these two actions for joint discovery may, thus, tend to avoid unnecessary costs and delay in the gathering of documents and deposing of common witnesses. See CPLR 602(a). Accordingly, the motion to consolidate these two actions for discovery purposes only is granted.

The court considers the remainder of the plaintiff's arguments — regarding sanctions and attorney's fees — to be without merit.

Accordingly, it is hereby

ORDERED that the motion is granted to the extent that this action and Mulberry Development LLC v. Peak Performance LLC, Index No. 155548/2016, are consolidated for purposes of joint discovery, scheduling, conferencing and all pre-note proceedings; and it is further

ORDERED that the motion is denied for all other requested relief; and it is further

ORDERED that counsel are directed to appear for a status conference in Part 43, located at 111 Centre Street, Room 581, on Thursday, June 14, 2018 at 11:00 a.m.

Dated: May 17, 2018
Hon. Robert R. Reed
J.S.C.