Nelson v CRP N.Y. Ave, LLC

[*1] Nelson v CRP N.Y. Ave, LLC 2020 NY Slip Op 50967(U) Decided on August 28, 2020 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 28, 2020
Supreme Court, Kings County

Grant Nelson, Plaintiff,

against

CRP New York Ave, LLC; Castellan Real Estate Partners; 1084 New York D, LLC; Liberty Place Property Management, LLC, Defendants.



522182/16



Attorney for Plaintiff Grant Nelson:

Joel M Rubenstein, Esq.

GermanRubenstein, LLP

19 West 44th Street Suite 1500

New York, NY 10036

Attorney for Defendants CRP New York Avenue LLC, Castellan Real Estate Partners, 1084 New York D, LLC, and Liberty Place Property Management LL" target="_blank">see Chowdhury v Hudson Val. Limousine Serv., LLC, 162 AD3d 845 [2nd Dept 2018]. Before a court invokes the drastic remedy of striking a pleading, or even of precluding all evidence, there must be a clear showing that the failure to comply with a court order was willful and contumacious (Crupi v Rashid, 157 AD3d 858, 859 [2nd Dept 2018]).

Contrary to the plaintiff's contention, he failed to establish that he was entitled to sanctions due to the defendants' alleged failure to properly and fully respond to his discovery requests, because he failed to provide the required affirmation of good faith to resolve the parties' discovery disputes (see 22 NYCRR 202.7 [c]; Fernandez v DaimlerChrysler, A.G., 143 AD3d 765, 767—68 [2nd Dept 2016]), citing Pardo v O'Halleran Family Chiropractic, 131 AD3d 1214, 1215 [2nd Dept 2015]).

The Court is mindful that there are instances in which the movant's failure to provide an affirmation in accordance with 22 NYCRR 202.7 [c] did not require or result in the denial of the motion for sanctions for failure to comply with discovery demands (see Encalada v Riverside Retail, LLC, 175 AD3d 467 [2nd Dept 2019]). However, in those instances, the movant satisfied the requirements of 22 NYCR 202.7 (c) by the primary affirmation of counsel submitted in support of the motion wherein counsel detailed the efforts made to obtain their adversary's compliance.

In the case at bar, however, the affirmation of plaintiff's counsel did not detail the efforts plaintiff made to resolve the discovery dispute. Contrary to the requirements of 22 NYCRR 202.7, the affirmation of plaintiff's counsel did not indicate the time, place and nature of the consultation and the issues discussed nor why no such conferral with counsel for the defendants was held (Bronstein v Charm City Housing, LLC, 175 AD3d 454 [2nd Dept 2019]).

Moreover, there was no clear showing that the defendants willfully and contumaciously failed to comply with plaintiff's discovery demands (Belle-Fleur v Desriviere, 178 AD3d 993, 995 [2nd Dept 2019]). Consequently, plaintiff's motion is denied.

CONCLUSION

The motion by Grant Nelson for an order pursuant to CPLR 3126 (3), striking the answer of defendants based on the defendants' alleged failure to respond to discovery demands is denied.

The foregoing constitutes the decision and order of this Court.

Dated: August 28, 2020

HONORABLE FRANCOIS A. RIVERA

J.S.C.