Barlow v Skroupa

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Barlow v Skroupa 2021 NY Slip Op 32339(U) November 10, 2021 Supreme Court, New York County Docket Number: Index No. 651739/2020 Judge: Lucy Billings 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] INDEX NO. 651739/2020 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 11/15/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 41 -------.----------- ----------- --------x HEATHER BARLOW, VALUE EXTRACTION SERVICES-LLC, PHILIP LOFASO, JAKE HENDERSON, MAKEEDA PERKINS, MAURA MURPHY, MARINA PUSHKINA, JEN DOBIES, ROES 1-2, and all others similarly situated and/or interested parties, Index No. 651739/2020 Plaintiffs DECISION AND ORDER - against CHRISTOPHER SKROUPA,. INSPIRE SUMMITS LLC d/b/a SKYTOP STRATEGIES, DAVID KATZ, JOHN STEPHEN WILSON, PAULA LUFF, and ADVISORY BOARD MEMBERS DOES 1-5, Defendants - ·------------------ · ______ \ --------- -x LUCY BILLINGS, J.S.C.: Plaintiffs are financial analysts,- human resources personnel, and website.specialist s who claim they were not paid . for services pro~ided to defendan~s, who organize business . conferenc~s or are- associated with the enterprise. Plaintiffs move for penal~ies due to defendants' abject failure to respond to any of plaintiffs' disclosure demands in compliance with C.P.L.R. §§ C.P.L.R. § 3107, ~120(2), and 3133 a~d repeated orders. 3126(3). Defendants' only excuse for; their noncompliance is that they were planning to move to dismiss the complaint and were waiting for pla~ntiffs' definitive a~ended complaint. barlow1121 1 2 of 7 [* 2] INDEX NO. 651739/2020 NYSCEF DOC. NO. 157 I., RECEIVED NYSCEF: 11/15/2021 DEFENDANTS LACK A VIABLE EXCUSE. Yet defendants never explain how prospective amendments to the complaint-prevente d defendants from responding to plaintiffs' disclosure demands that plaintiffs duly served and to which the court then ordered d~fendants to respond.· Defendants may have been under no deadlin~ to move to dismiss.the complaint, but their deadlines to respond to plaintiff's disc~osure demands, firs~ according to C.P.L~R. §§ 3107J 3120(2), and 3133, ~nd then I according t6 the ordeFs entered before de~endants removed this action to the United States District Court for the Southern District of New York, never abated. While an order by this court during any period of removal might have been ineffective, 28 U.S.C. § 1446(d), the orders setting deadlines for disclosure were entered when the action was in this court and remained effective. The federal court received the removed action in the same pro~edural posture as when the action was in this court and ihen undertook to give effect to this court's orders entered· before the removal. D.H. Blair & Co., Inc. v. Got~diener, 462 F.3d 95, 108 (2d Cir. 2006); Sun Forest Corp. v. Shvili, 152 F. Supp .. 2d 367, 387 (S.D.N.Y. 2001). "Upon removal, the o~ders·entered by the state court are treated as though they have been entered by the federal court.~ (E.D.N.Y. 2002). Nasso v, Seagal, 263 F. Supp. 2d 596, 608 See In re Diet Drugs, 282 F.3d 220,· 231-32 (3d Cir. 2002); Resolutio~·Trust Corp. v. Northpark Joint Venture, 958 F.2d 1313, 1316 (5th Cir. 1992); Preaseau v. Prudential Ins. barlowll21 2 3 of 7 [* 3] INDEX NO. 651739/2020 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 11/15/2021 co. of America, 591 F.2d 74, 79 (9th Cir. 1979). When this action was in the federal court, if defendants sought to relieve themselves from the disclosure deadlines set by this court, defendants needed to move to extend, modify, or vacate those deadlines, D.H. Blair & Co.,· Inc. v. Gottdiener, 462 F.3d at 108, but nev~r did so, there or after this action was remanded here. Gibbs v. St. Barn~bas Hosp., 16 N.Y.3d 74, 81 (2010); Vanda~hield Ltd v. Isaacson, 146 A.D.3d 552, 556 (ist D~p't 2017): Defendants also-oppose plaint~ffs' motion on the grounds that pla"intiffs failed -to demonstrate that they had conferred '\ with defendants' attorney.in a good faith effort to resolve their noncomplianc e. 22 N.Y.C.R.R. § 202.7(a) and (c). Plaintiffs' motion to compel disclosure, granted in an order entered December 17 ,. 2020, and the Preliminary .Conference, . gene.ratiilg ·the Preliminary Conference Order entered February 9, 2021, demonstrate 'that plaintiffs did confer with defendants' atto·rney prefatory to those orders, and, after two orders, further efforts to resolve defendan~s' intransigence wbuld be futi Suarez v. Shapiro Family Realty Assoc., LLC, 149 A.D.3d 526, 527 (1st Dep't 2017r; Loeb v. Assara N.Y. I L.P., 118 A.D.3d 457, 458 (1st De~'t 2014); Scaba v. Scaba, 99 A.D.3d 610, 611 .(1st Dep't 2012); Baulieu v. Ardsley Assoc., L.P., 84 A.p.3d 666, 2011) . 666 (1st Dep't Moreover, both plaintiffs and defenc;lant-s pres·ent abundant email correspondenc e. in wh_ich plaintiffs sought defendant~' compliance with discl,osure deadlines, but defendants responded concerning only their anticipated m9tion to dismiss the barlow1121 3 4 of 7 [* 4] INDEX NO. 651739/2020 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 11/15/2021 complaint. Caserta v. Triborough Bridge A.D.3d 532, 533 158 A.D.3d 597, & & Tunnel Auth., 180 (1st Dep't 2020); Rodriguez v. Nevei Bais. 59~ (1st Dep't 2018); Cuprill v. Citywide Towing Auto R_epair Servs., :149 A.D.3d 442, _443 (1st Dep't 2017_). Suarez~- Shapiro ~amily Realty Assoc .•. LLC, Loeb v. Assara N.Y. Sys .• Inc., I L.P., See 149 A.D.3d at 527; ~18 A.D.3d at 458; ~orthetn Leasing Inc. v. Estate of turner, ~2 A.D.3d 490, 491 (1st Dep't 2.011). II. PLAINTIFFS ARE ENTITLED TO PENALTIES. Because defendants' offered excuse itself demonstrates that their noncompliance was willful, particularly when the court gave defendants.repeated chancei to comply, the court grants plaintiffs' motion to the following extent and imposes the following penalties. A.D.3d 422, 442, ~10 442 422 ,C.P.L.R. (1st Dep't 2020); Menkes ~- Delikat, 148. A.D.3d (st Dep't 2017); Crooke v. Bonofacio, 147 A.D.3d 510, (1st Dep'-t· 2017); Ithilien Realty Corp. v. 176 Ludiow. ~LC, 139 A. D. 3d 582, 583 (1st D_ep' t LLP-Guangzhou v. North Am. 512 3126; Wyatt v. Sutton, 185 § (1st Dep't 2018). 2016). See Anderson & Anderson Foreign Trading Corp., ·165 A.D.3d 511, First, due to defendants' inordinate delay in responding t? disclosure demands before moving to dismiss any claims in the complaint, the court denies them any.further stay of disclosure when they do move to dismiss the complaint'~ claims. See C.P.L;R. § 3214{b); Crooke v._Bonofacio, at 511; 241 Fi~th Ave. Hotel. LLC v. GSY Corp., 472 147 A.D.3d 110 A.D.3d 470, (1st Dep't 2013); Allstate Ins. Co. v. Buziashvili, 71 A.D.3d barlow1121 4 5 of 7 [* 5] INDEX NO. 651739/2020 NYSCEF DOC. NO. 157 RECEIVED NYSCEF: 11/15/2021 571, 572-73 (1st Dep't ~oi6); Weissman v. 20 E. 9th St. Corp., 48 A.D.3d 242, 243 (1st Dep't 2008). Second, defendants shall be precluded from offering at trial or in support of or in opposition to any motion any documents that they fail to produce ·in compliance with the deadlines for production of documents set in the stipulated Status Conference Order dated Novembe.r 9, 2021. C.P.L.R. § 3126(2); Gibbs v. St. Barnabas Hosp., 16 N.Y.3d at 82-83; Diaz v. Maygina Realty LLC, 181 A.D.3d 478, 478 (1st Dep't 2020); Henry v. Lenox Hill Hosp., 159 A.D.3d 494, 495 (1st Dep't 2018); Vandashield Ltd v. Isaacson, 146 A.D.3d at 556. 422; Anderson & See Wyatt v. Sutton, 185 A.D.3d at Anderson LLP-Guangzhou v. Nor_th Am. Foreign Trading Corp., 165 A.D.3d at 512; Mohel v. Gavriel Plaza~ Inc., ' 123 A.D.3d 464~ 465 (1st Dep't 2014); Silva v. Lakins, 118 A.D.3d 556, 556 (1st Dep't 2014). Similarly, if defendants fail to answer any interrogatory in compliance with the deadline set in that Status Conference Order, they shall be precluded from offering any evidence on the issue to which the unanswered ' interrogatory pertains at trial or in support of or in opposition to any motion. Finally, if any defendant fails to appear for a deposition in compliance with the deadline set in that Status Conference Order or a stipulated date, that defendant shall be precluded from testifying at trial or submitting an affidavit in support of or in opposition to any motion. See Crooke v. Bonofacio, 147 A.D.3d at 510; Mohel v. Gavriel Plaza. Inc., 123 A.D.3d at 465; Silva v. Lakins, 118 A.b.3d at 556. barlowll21 5 6 of 7 The court [* 6] INDEX NO. 651739/2020 NYSCEF DOC. NO. 157 - - ·-·--·- ·--- RECEIVED NYSCEF: 11/15/2021 '. - -----··· -· - . _________, -- ·- denies plaintiffs' motion to the extent that it seeks a further penalty. C.P.L.R. § 3126(3); Crooke v. Bonofacio, 147 A.D.3d at 511; 241 Fifth Ave. Hotel. LLC v. GSY Cor·p., 110 A.D.3d at 472; Allstate Ins. Co. v. Buziashvili, 71 A.D.3d at 572-73; Weissman v. 20 E. 9th St. Corp., 48 A.D.3d at 243. DATED: November 10, 2021 LUCY BILLINGS, J.S.C. barlowl121. 6 . I 7 of 7

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