Keaveny v Whitford Dev., Inc.

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Keaveny v Whitford Dev., Inc. 2019 NY Slip Op 33293(U) November 1, 2019 Supreme Court, Suffolk County Docket Number: 22601/2010 Judge: Joseph Farneti 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. [* 1] SHORT FORM ORDER INDEX NO. 22601/2010 SUPREME COURT-Sl ATE OF NEW YORK l.A.S. TERM PART 37 - SUFFOLK COUNTY PRESENT: HON. JOSEPH FARNETI Acting Justice Supreme Cc urt VINCENT KEAVENY and MICHELLE KEAVENY, ORIG. RETURN DATE: FEBRUARY 1, 2018 FINAL SUBMISSION DATE: JUNE 14, 2018 MTN. SEQ. #: 003 MOTION: MOT D Plaintiffs, -againstWHITFORD DEVELOPMENT INC ., Defendant. PLAINTIFFS' ATTORNEY: ABRAMS , FENSTERMAN, FENSTERMAN, EISMAN, FORMATO, FERRARA, WOLF & CARONE, LLP 3 DAKOTA DRIVE - SUITE 300 LAKE SUCCESS, NEW YORK 11042 516-328-2300 - DEFENDANT'S ATTORNEY: PETER B. GIERER, ESQ. 50 RIVER CLUB DRIVE HILTON HEAD, SOUTH CAROLINA 29926 516-578-6963 Upon the following papers numbe ed 1 to 6 read on this motion _ _ __ TO STRIKE COMPLAINT . Notice of Motion and supporting papers 1-3 ; Affirmation in Opposition and supporting papers 4 5 ; Reply Affirmation 6 ; it is, ORDERED that this motion (>eq. #003) by defendant WHITFORD DEVELOPMENT INC. ("Whitford") for an brder, pursuant to CPLR 3126: (1) striking the complaint of plaintiffs VINCE" T KEAVENY and MICHELLE KEAVENY and dismissing plaintiffs' actio11, granting Whitford's counterclaim and setting the counterclaim down for an inquest; and (2) deeming the issues to which the discovery demanded in the action is r1elevant, resolved in favor of the claims/defenses of Whitford, is hereby GI 'ANTED to the extent set forth hereinafter. The Court has received oppc sition hereto from plaintiffs. Plaintiffs commenced this ac ion on June 18, 2010, by summons and complaint, against Whitford to compel the return of a $30,000.00 down payment they made in connection with their purchc: se of the premises known as Job 1120, [* 2] KEAVENY v. W HITFORD DEVELOPMENT, IN INDEX NO. 22601/2010 FARNETI, J. PAGE2 Rosewood , Kings Park, New York (" Premi es"). In addition , plaintiffs are seeking damages in the amount of $13,213.00 as result of Whitford's alleged conversion of their personal property. Plaintiffs inform the Court tha on or about December 22 , 2009 , they entered into a contract of sale ("Contract") with Whitford for the purchase of the Premises and for the construction of a ne house thereupon . The Contract provided that Whitford would sell the Pre ises to plaintiffs for the sum of $549,000.00. Upon the signing of the Corntract, plaintiffs paid the down payment in the amount of $30,000.00 to Whitford's attorney, Michael Strauss, Esq. , as escrow agent. Whitford alleges that Mr. rauss is still holding such monies in escrow. Plaintiffs allege that the Cont act provided that Whitford was to deliver a final Certificate of Occupancy an close no later than May 1, 2010, but that Whitford failed to do so. As such , by orrespondence dated May 4, 2010, plaintiffs' attorney indicated to Mr. Straus that pursuant to paragraph 17 of the Contract, plaintiffs "will be exercising [thei ] right to cancel the [C]ontract. Please return the down-payment and any accrue interest to our office as soon as possible." By Order dated June 22, 201 , this Court denied a motion by plaintiffs for summary judgment. The Co rt found that plaintiffs had made an initial prima facie showing of entitlement ~judgment as a matter of law by establishing that Whitford failed to obtain Certificate of Occupancy and close by May 1, 2010. However, in opposition , W itford contended that plaintiffs acted in bad faith and were primarily responsible ff r the delay by, among other things, not timely obtaining a mortgage commitment; requesting changes to the specific layout of the house and ordering addition · I work at the Premises and refusing to pay for same; supplying their own applian es rather than ordering through Whitford's supplier, and then lacking the r1 quisite knowledge about the installation thereof; and interfering with W itford's ability to obtain a Certificate of Occupancy from the Town of Smithtown . Whitford has filed the instant motion to strike plaintiffs' complaint, alleging that plaintiffs failed to timely and ompletely respond to Whitford's discovery demands, and failed to comply ith the Preliminary Conference Order in this matter. In particular, Whitford indi ates that plaintiffs failed to properly [* 3] KEAVENY v. WHITFORD DEVELOPMENT, IN INDEX NO. 22601/2010 FARNETI , J. PAGE3 respond to its Notice for Discovery and In pection, Interrogatories, and Combined Demands, all of which were served upon laintiffs on or about March 27, 2017. Whitford contends that plaintiffs fa iled to r spond at all to its demands until November 2, 2017, whereupon they provi ed Whitford with a disc only containing their response to Whitford's Notice for Dis every and Inspection . Whitford argues that this response was inadequate and im roper, as it was not categorized or organized in response to Whitford's dema ds. Further, Whitford alleges that there was no response to Whitford's lnterr gatories or Combined Demands, and no disclosure pursuant to the Preliminary onference Order. In opposition , plaintiffs haves bmitted copies of plaintiffs' first and second production of documents, plaintiffs first and second responses to Whitford's Combined Demands, and plain iffs' privilege log with respect to six ernails sent from plaintiff VINCENT KEAV NY to Michael Messi , Esq. As such , plaintiffs allege that their conduct herein h s not been willful , contumacious or in bad faith. Therefore, plaintiffs argue that t eir complaint should not be stricken. In reply, Whitford alleges that plaintiffs' discovery responses are "still, when not totally absent, utterly incomplete and non-compliant with the CPLR and this Court's Preliminary Conference Order." Whitford contends that plaintiffs still have wholly failed to respond to Whitford's Interrogatories, and have belatedly objected to and refused to respond to a thi d of Whitford's Combined Demands. CPLR 3101 (a) provides for di closure of "all matter material and necessary in the prosecution or defense o an action. regardless of the burden of proof' (CPLR 3101 [a]). Although CPLR 3 01 favors liberal disclosure, such disclosure must be material and necessa to the prosecution or defense of the 1 340 [2004]; DeStrange v Lind, 277 action (CPLR 3101 ; Gill v Mancino, 8 AD3'.f AD2d 344 [2000]). "If there is any possibility that the information is sought in good faith for possible use as evidence-in- hief or in rebuttal or for crossexamination , it should be considered evid nee material in the prosecution or defense" (Allen v Crowe/I-Collier Publishin Co. , 21 NY2d 403, 407 [1968]). "New York has long favored open and far- aching pretrial discovery" (DiMichel v South Buffalo Ry. Co., 80 NY2d 184 [1992 , cert denied sub nom Poole v Consolidated Rail Corp., 510 US 816 [199 ]). CPLR 3126 provides that a court may, in its discretion, impose a wide range of penalties upon a party whic either: (a) refuses to obey an order for [* 4] KEAVENY v. WHITFORD DEVELOPMENT, INC INDEX NO. 22601/2010 FARNETI , J . PAGE4 disclosure; or (b) willfully fa ils to disclose i formation which the court finds ought to have been disclosed (CPLR 3126). Th penalties proposed by the statute include: (1) deciding the disputed issue in avor of the prejudiced party; (2) precluding the disobedient party from pro ucing evidence at trial on the disputed issue; or (3) either striking the pleadings o the disobedient party, or staying the proceedings until the ordered discovery is produced , or rendering a default judgment against the disobedient party (C LR 3126). It is appropriate to strike a party's pleading where there is a clear sh wing that its failure to comply with discovery demands is wilful, contumaciou , or in bad faith (see Denoyelles v Gallagher, 40 AD3d 1027 [2007]; Fellin v ahgal, 268 AD2d 456 [2000); Harris v City of New York, 211 AD2d 663 [1995)). enerally, "willfulness" is inferred from a party's repeated failure to respond to de ands and/or to comply with disclosure orders, coupled with inadequate excuses or its defaults (see Siegman v Rosen, 270 AD2d 14 [2000]; DiDomenico v C & S Aeromatik Supplies, Inc. , 252 AD2d 41 (1998) ; Frias v Fortini, 240 AD2d 467 (199 ]). It is undisputed herein that pl intiffs failed to timely respond to Whitford's discovery demands of March 2 , 2017. The failure of plaintiffs to object or move for a protective Order, pur uant to CPLR 3122 , within twenty (20) days after service of the demands foreclo es all inquiry concerning the propriety of the demands, except as to demands se king privileged matter under CPLR 3101 , or demands that are palpably impro er (see CPLR 3122, 3101 ; Anonymous v High School for Envtl. Studi s, 32 AD3d 353 [2006]; Holness v. Chrysler. Corp., 220 AD2d 721 [1995]; Ala en Co. Inc. v So/ii Management Corp., 181 AD2d 466 [1992]). A disclosure requ st is palpably improper if it seeks information of a confidential and private n ture that does not appear to be relevant to the issues on the case (see S ratoga Harness Racing, Inc. v Roemer, 274 AD2d 887 [2000]; Titleserv, Inc. v Ze obio, 210 AD2d 314 [1994)). Plaintiffs have not claimed privilege with respect to he demands, save the six emails referenced in the privilege log and the do uments requested in Whitford's Discovery and Inspection Demand No. 7, nd the Court does not find the demands to be palpably improper. While he emails referenced in the privilege log may be shielded by the attorney-client privilege, the Court finds that plaintiffs' response to Whitford's Discovery and Ins ection Demand No. 7 to be improper, as internal memoranda and other documents relating to Vincent, Michelle and/or Whitford's involvement with work on the p oject and premises does not solely call for information protected by the attorney-a ient privilege and/or work product privilege. [* 5] FARNETI, J. PAGE 5 KEAVENY v. WHITFORD DEVELOPMENT, INC. INDEX NO. 22601/2010 Accordingly, this motion by W plaintiffs' complaint shall be stricken unles responses to Whitford's demands of Marc required by the Preliminary Conference Or of service upon plaintiffs of the instant Ord itford is GRANTED to the extent that plaintiffs provide full and complete 27, 2017, as well as the disclosure er, within thirty (30) days of the date r with notice of entry. The foregoing constitutes the ecision and Order of the Court. Dated: November 1, 2019 H Ac mg Justice Supreme Court _ _ FINAL DISPOSITION X NON-FINAL DISPOSITION

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