2067 Bake Corp. v Lulu Gigi Realty LLC
Annotate this CaseDecided on June 23, 2021
Supreme Court, New York County
2067 Bake Corp., Plaintiff,
against
Lulu Gigi Realty LLC, WEBRO 2067 LLC, IRAYMOND 2067 LLC, STAR OF DAVID 2067 LLC, and RANDALL CO. 2067 LLC, Defendants.
Index No. 656617/2017
Law Office of Sokolski & Zekaria, P.C., New York, NY (Daphna Zekaria of counsel), for plaintiffs.
Golino Law Group, PLLC, New York, NY (Brian W. Shaw of counsel), for defendants.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 78, 79
were read on this motion for SUMMARY JUDGMENT.
This action arises from a dispute between a commercial tenant and its landlords. Defendants have moved for summary judgment. The motion relies in part on a status-conference order entered by this court that imposed a conditional sanction of preclusion under against plaintiff under CPLR 3126 for plaintiff's repeated failure to provide court-ordered discovery. By letter application—filed on a holiday Friday before a Monday return date—plaintiff asks this court to stay the motion pending plaintiff's newly noticed appeal from the conditional-preclusion order. The stay application is denied.
Background
Plaintiff brought this action in October 2017. In November 2017, defendants served a series of discovery demands, including a request for documents. (See NYSCEF Nos. 5-7.) Unrelated motion practice then ensued. As a result, this court did not hold a preliminary conference in the case until February 2019.
The resulting preliminary-conference order, entered on March 1, 2019, set a July 2019 deadline for all parties to produce documents—plaintiff having not yet responded to defendants' November 2017 document request. (See NYSCEF No. 41.) Plaintiff did not respond to defendants' document request by July 2019 as directed by the preliminary-conference order. Indeed, between September 2019 and September 2020, this court entered another three conference orders extending plaintiff's deadline to produce documents as originally requested in 2017. (See NYSCEF Nos. 44, 48, 51.) Plaintiff did not do so.
As a result, at a scheduled status conference in January 2021, defendants requested, and this court entered, a conditional order of preclusion. This order directed plaintiff to respond to defendants' document demands within 30 days, and provided that should plaintiff not do so, it would "be precluded from offering into evidence at trial, testifying as to the existence of, and/or offering in opposition to . . . summary judgment any documents which are not provided to Defendants" on or before the deadline. (NYSCEF No. 52.)
It appears undisputed that plaintiff did not respond to defendants' document demands by the deadline set by the January 2021 conference order. Plaintiff did not move to vacate that order. Nor did plaintiff contact this court to request an extension on the deadline set in the order.
In March 2021, defendants filed the current motion for summary judgment. That motion relied, in part, on the fact that plaintiff was precluded from offering documentary evidence in opposition to defendants' arguments for summary judgment, under the January 2021 conference order. Defendants made the motion returnable on March 25, 2021, and demanded under CPLR 2214 (b) that opposition papers be filed on or before March 18, 2021. (See NYSCEF No. 53.)
Plaintiff did not file opposition papers on or before March 18. On March 24, 2021, plaintiff made an application in the Motion Submission Part to adjourn the return date from March 25 to April 30. (See NYSCEF No. 70.) The Motion Submission Part referee, over defendants' objection, granted an adjournment until May 10, with plaintiff's opposition papers due April 23 and defendants' reply papers due May 7. (See NYSCEF No. 72.) On May 7, plaintiff filed another adjournment application in the Motion Submission Part, seeking to push the return date back to June 11, with plaintiff's opposition papers now to be due on June 4. (See NYSCEF No. 73.) The Motion Submission Part referee, over defendants' objection, adjourned the return date from May 10 to June 21, with plaintiff's opposition papers due June 4 and defendants' reply papers due June 18. (See NYSCEF No. 75.)
Plaintiff did not file opposition papers on or before June 4. Instead, on June 18, 2021 (a holiday), plaintiff filed a notice of appeal from this court's January 2021 conference order. (See NYSCEF No. 76.) Plaintiff then immediately filed the current letter application for a stay. The letter application asserted that "[a]s this preclusion order is currently under appeal and the instan[t] motion is dependent upon the preclusion being granted to make its case for summary judgment, the results of this appeal will affect the outcome of the instant motion," warranting a stay. (NYSCEF No. 77.) The letter application also sought a two-week adjournment of the motion return date to afford this court time to resolve the stay application. (See id.)
Discussion
This court concludes for several reasons that a stay pending appeal is unwarranted here. To begin with, the CPLR does not permit plaintiff to appeal as of right from this court's January 2021 conference order, because that order did not decide a motion made on notice. (See CPLR 5701 [a] [2].) And even assuming that the Appellate Division, First Department, would choose to construe the notice of appeal as a request for leave to appeal—and grant leave—the Court would be unlikely to decide the appeal until well into 2022. That is a substantial delay, especially considering that defendants first moved for summary judgment more than three months ago already. The mere possibility that the First Department will vacate this court's conditional-preclusion order, and thereby alter this court's merits consideration of the pending summary-judgment motion, is a thin reed to bear such weight.
Further, this court remains unpersuaded that it abused its ample discretion over the discovery process by entering a conditional-preclusion order here. (See Arts4All, Ltd. v Hancock, 54 AD3d 286, 286 [1st Dept 2008] [explaining that "[s]ubstantial deference should be accorded to the trial court's considerable discretion to compel compliance with discovery orders, and, absent clear abuse, a penalty imposed in accordance with CPLR 3126 should not readily be disturbed"].) This court imposed conditional preclusion as a severe, but necessary, potential consequence for plaintiff's sustained failure to comply with its discovery obligations, and several discovery orders of the court, over a three-year period. Yet this court also afforded plaintiff an opportunity to avoid preclusion by providing the requested discovery within the order's 30-day deadline. Plaintiff did not meet that deadline. Nor did it ever seek to vacate the imposition of the deadline,[FN1] or even seek an extension of the deadline. And once defendants moved for summary judgment, plaintiff missed several more court-ordered filing deadlines.
Finally, on plaintiff's own characterization of the relationship between preclusion under this court's January 2021 conference order and defendants' summary-judgment motion,[FN2] plaintiff likely would still be able to bring up the conference order for review on appeal from a final judgment in defendants' favor. (See CPLR 5501 [a] [1].)
Defendants urge that in addition to denying a stay, this court also should decline to adjourn the summary-judgment motion any further—particularly given the Motion Submission Part's statement that no further adjournments would be granted. (See NYSCEF No. 78.) Defendants' arguments on this point are not without force. This court concludes, though, that the better course is instead to afford plaintiff a final opportunity to oppose the motion. Any opposition papers must be filed on or before Friday, July 2, 2021. Defendants may then file reply papers, if they so choose, on or before Monday, July 19, 2021.
DATE 6/23/2021 Footnotes
Footnote 1:Had plaintiff moved on notice to vacate the conference order, an order denying the motion to vacate, unlike the conference order itself, would be appealable as of right. (See Sholes v Meagher, 100 NY2d 333, 335 [2003].)
Footnote 2:This court does not reach at this time the merits of the summary-judgment motion (or how those merits are affected by preclusion).
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