Munsen v Plota
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Munsen v Plota 2020 NY Slip Op 32977(U) September 8, 2020 Supreme Court, New York County Docket Number: 656195/2018 Judge: Debra A. James 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 09/09/2020 03:38 PM NYSCEF DOC. NO. 38 INDEX NO. 656195/2018 RECEIVED NYSCEF: 09/09/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART HON. DEBRA A. JAMES PRESENT: IAS MOTION 59EFM Justice ----------------------------------------------------------------X RALPH MUNSEN, INDEX NO. MOTION DATE Plaintiff, MOTION SEQ. NO. 65619512018 0310512020 002 -vDECISION + ORDER ON MOTION TROY PLOTA and TROY PLOTA LLC, Defendants. ----------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 26, 27, 28, 29, 30, 31,32,33,34, 35, 36 were read on this motion to/for STRIKE PLEADINGS"------ Upon the foregoing documents, it is ORDERED that the plaintiff's motion to the extent that it an order i:nmediately striking defendant TROY PLOTA' s answer is denied; and it is further ORDERED that to the extent that plaintiff's motion seeks a penalty against defendant TROY PLOTA, defendant TROY PLOTA, having. failed to comply with the prelimir.ary cor.ference order _dated November 14, 2019 is hereby precluded :rom offering any evidence in defense of plaintiff's claim (30) days from service liability, unless, within thirty a copy of this order with notice of entry upon defense counsel, counsel for defendant TROY PLOTA transmits to aintiff's counsel complete fied responses to plaintiff's interrogatories and a date for his examination before trial via 65619512018 MUNSEN, RALPH vs. PLOTA, TROY Motion No. 002 Page 1 of4 1 of 4 [*FILED: 2] NEW YORK COUNTY CLERK 09/09/2020 03:38 PM NYSCEF DOC. NO. 38 INDEX NO. 656195/2018 RECEIVED NYSCEF: 09/09/2020 virtual platform, and, within 15 days after such 30-day period, defendant files with NYSCEF an affirmation of his attorney, setting forth compliance with the aforesaid; and it is further ORDERED that counsel compliance conference conference orders are order via directed to or dueling the IAS submit proposed Part a proposed compliance mailbox 59 (59nyef@nycourts.gov) and on NYSCEF on or before October 15, 2020. DISCUSSION In this breach of contract action, plaintiff RALPH MUNSEN moves to strike defendant's answer pursuant to CPLR 3124. On May 22, 2019 plaintiff sent a set of interrogatories and a notice to take deposition to the answering defendant TROY PLOTA. On September 5, 2019, defendant answered the interrogatories in a notarized document. ·with defendant's answers (Motion Sequence 001). mov~d Plaintiff, unsatisfied to strike defendant's answer In accordance with the court rules, a preliminary conference to resolve such dispute was scheduled for November 14, 2019. Defendant's counsel failed to attend the preliminary conference. The court issued a preliminary conference order setting a schedule for defendant to produce another set of interrogatory answers and a deadline for defendant's deposition. Such order decided motion sequence number 001. 65619512018 MUNSEN, RALPH vs. PLOTA, TROY 2 of 4 Page 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 09/09/2020 03:38 PM NYSCEF DOC. NO. 38 INDEX NO. 656195/2018 RECEIVED NYSCEF: 09/09/2020 led the instant motion (sequence 002), after Plaim:::iff the dates set forth in the preliminary conference order had passed. In his opposing affidavit, defendant states that from December 2019 through February 2020, he was traveling extensively. Defendant states that many of his interrogatory objections went to the form of the questions and that he was waiting for a new set of interrogatories from plaintiff. CPLR 3126 states that "If any party . .refuses to obey an order for disclosure or willfully ls to disclose information which the court finds ought to have been disclosed pursuant to this arti / the court may make such orders with regard to failure or refusal as are just." Here, defendant did not obey the preliminary conference order dated November 14, 2019. "It is within the motion court's discretion to determine the nature and degree of the penalty" to be against a party who has refused to obey a court order it Authorit , 169 for disclosure" (see AD3d 435 [1st Dept 2019]). However, "striking an answer is inappropriate absent a clear showing that the failure to comply is willL1l, contumacious or in bad faith" (J='C!~menta v. CoL1mbia University 266 AD2d 90, 91 [1•= Dept. 2002] I. In this case, since defendant responded, though allegedly suff iently, to one set of interrogatories, and offered some excuse for failing to comply with the 85619512018 MUNSEN, RAl.PH Motion No. 002 iminary conference order, it would be an vs. Pl.OTA, TROY Pago 3 of4 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 09/09/2020 03:38 PM NYSCEF DOC. NO. 38 INDEX NO. 656195/2018 RECEIVED NYSCEF: 09/09/2020 improvident exercise of discretion to strike defendant's answer at this time. 0910812020 l'oefiifiA'A. '1M~s<;J.S::2 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED 0 NON-FINAL DISPOSITION DENIED 8 GRANTED IN PART SUBMIT ORDER SETTLE ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT D D OTHER REFERENCE Page 4 of 4 656195/2018 MUNSEN, RALPH vs. PLOTA, TROY Motion No. 002 4 of 4
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