Cong. Machon Chana v Labkowski

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Cong. Machon Chana v Labkowski 2022 NY Slip Op 32568(U) July 26, 2022 Supreme Court, Kings County Docket Number: Index No. 503045/15 Judge: Lawrence S. Knipel 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. INDEX NO. 503045/2015 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 RECEIVED NYSCEF: 07/29/2022 At an lAS Term, Part CommM4 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 26ih day of July, 2022. PRESENT: HON. LAWRENCE KNIPEL; Justice. ------------------------------------- .--------------.. ---------.---X CONG. MACHON CHANA, a Religious Corporation, Plaintiff, .:..against- Index No.: 503045/15 Mot. Seq .. No. 14 SARA LABKOWSKI,·ZALMAN LABKOWSKI, RIV A TELESHEVSKY and BATLA BRONSTEIN a/k/a BAILA GRINKER, Defendants . . ------------------- .---------· ---------------. ---------------.. ---x: The following e-filcd papers read herein: NYSCEF Doc Nos.: Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirni.ations) Annexed_ _ _ _ _ _ _ __ Opposing Affidavits (Affirmations)_ _ _ _ _ _ _ __ Affidavits/ Affirmations in Reply _·_ _ _ _ _ _ _ __ Defendants' Memoi'andum ofLaw --------- 473-502 503-504 506-513 sos Upon the foregoing papers, m this declaratory judgment action by plaintiff, purporting to represent Cong. Machon Chana (plaintifO, a religious corporation, plaintiff moves, und.er motion seq uen cc numb er 14, for an order, pursuant to CPL R 3 .1 b l and 3 I 26, dfredin,g: (1) that the answer· of defendants Zahnan. Labkowski, Riva Teleshevsky (Teleshcvsky), and Bail a Bronstein a/k/a Bail a Grihker (Bt.ohstein), dated April 3, .2019, be stricken in its entirety; or in the alternative (2) that the. issue of Whether Zalman [* 1] 1 of 24 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 INDEX NO. 503045/2015 RECEIVED NYSCEF: 07/29/2022 Labkowski, Tcleshevsky, and Bronstein are members of the board of trustees of Cong. Machon Chana be dcerned resolve din plaintiff s favor; or in the alternative {3) that Zalman Labkowski, Teleshevsky, and Bronstein be prohibited from Opposing plaintiff s claim that they are not members of Cong. Machon Chana's board oftnistee s and/or precluding them from introducing any evidence at trial to support their contention that they are members of Cong. Machon Chana's board oftruste es;or in the altemati ve(4) granting such other and further relief as the court may deem just and prnper. Facts and Procedu ral Backgro und This action arises out of a dispute as to who is authorized to act On behalf ofCong. Machon Chana, and, in turn, corifrol the use of real property located at 1367 President Street in Brooklyn (the premises) and. held in the name ofthe Cong. Machon Chana. The premises have been used since the 1970s as a dormitory for· foinale students engaged in Torah study, in accordance with Cong. Ma.chart Chana's mission to hold and conduct classes in religious subjects. Plaintifi'claims that Cong. Machon Chana;s board oftrustec s has changed over the years; thatelcct ions for board members are hCld on an annual basis, and thatover the years many different persons have served as members of the board of trustees. Defendants dispute this and claim that since l 97J, the board of trustees of Cong. Machon Chana has consisted of only four persons, namely, Zalrnan Labkowski, Teleshevsky, Bronstein, and Rabbi Nathan Gurary, who is deceased. Defenda nts also claim that since 1973, Sara Labkowski has been the sole person to occupy the position ofpi'esid cnt of Cong. Machon Chana. 2 [* 2] 2 of 24 INDEX NO. 503045/2015 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 RECEIVED NYSCEF: 07/29/2022 By a petition dated December 23, 2014, Sara Lahkowsk t pu:rportin gto act on behalf of Cong; Machon Chana, as its president, commence d a holdover proceedin gin the Civil Court, Queens County,_ to evict the stuqents residing at the prenii$es. 011-March 17, 2015, Cong. Mach.on Chana commence d this action against Sf:l.ra Lal:>kowski".and Macfion Chana Women's Institute; Inc. (the Women's Institute), seeking a judicial declaratio n that Sara Labkowski "i-.s trot.authorized to act on behalfofC ong._Mac hon Chana. By a decision and order dated Septernbe r25, 2015, the court granted that branch of a rnotio.n by plaintiff which sought a preliminary injunction restraining Sara Lc:1.bkowsl~i and. the Women's lnstitt,fte from. contirtuihg with the ·j:irOSl~cution of' the· holdover 0 proceeding arid for a stay of that proceeding . That decision and nrder was· affirtned by the AppeBMe Division, Second Departmen t ( Cong. Machon Chana v Machon Chana Women ;J' . . lnst:,lnc.,, 162 AD3d 635~ 637 .['.2d Dept 2018.J). 'While-the originally-·named defendants in this HG.Hon were Sara Labkowski and the Women':s Institu.te, following the initial.. exchange ofdocunients· between ·the :parties, ihe Women· s In~ti tlite' moved to dismiss plaintiffs complaint as against it; and plaintiff cross"' moved to amend its complaint t¢ add Zalman Labkowsk i, Teleshevs ky ,_and Bronstein, who claim to be the. Sole meinbei.s of the board of trustees of Cong. Machon .Chana, as defondants. This claim by Zahn-an Labkmvski, Teleshcvsky, and_Bronsteinis -vchementl):' disputed by plaintift: which asserts· that they haye no power or authority to act on ·behal fof Cong. :Machon Chana. By ~m order dated May 25, 2017, the court,_ in light of counsel for the .Women's Institute's ass~rtion_ in o._pe.n.court that the Women's Institute·d oes.not claim-own ership .3 [* 3] 3 of 24 or FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 INDEX NO. 503045/2015 RECEIVED NYSCEF: 07/29/2022 the right to Lise or occupy the premises, granted the Women's Institute's motion to dismiss plaintiffs cornplai1it as against it. The court further grnnted plaintiffs cross motion to add Zalman Labkowski, Tcleshevsky , and Bronstein as defendants. defendants Thus, the present in this action consist of Sara Labkowski, who claims to be the president of Cong. Machon Chana, Zaltnan Labkowski, Teleshevsky, and Bronstein. Plaintiffs redrafted amended summons and complaint was filed with the court on June 7; 2017, and was served on Teleshevsky on June 23; 2017, Sara Labkowski and Zahnan Labkowski on AugustJ, 2017, and Bronstein on October 4, 20 I 7. On May 17, 2017, the Women's Institute filed an action against Yosef Spalter (Spalter); Meir Horowitz (Horowitz), Rabbi Shloma Majeski, and Machon L'Yahadus, under index number 509876/2017 (the 2017 Women's Institute action), 1 seeking monetary damages for an alleged conversion of its fu11ds, and a declaration that Spalter ,md Horowitz are not its board members. the 2017 Womcn 1s Institute action concerns a claim that a competing wo1nen' s yeshiva stole employees and resources from the Women's Institute to start the competing school. known as Machon L 'Y ahadus. By an order dated July 3,2019, the court denied a motion to stay the 20 I 7 Women's Institute action or consolidate it with this action {NYSCEFD oc No. 500). are a total of four other actions, which ai'e related to the instant action, namely: Machon Chand Women's instirnte Inc ef al. v ,.\'hea Hecht et. al. (Sup Ct, Kings County, index No. 1· There 51370112015); Machon Chana Women's Inslilute inc. v .National Commilleefo rFurtherance of· Jewish Education et. al. (Sup Ct, Kings County, index No. 513767/2015) ; Machon Chana WOinen's1nstitute. inc. vSara Lcrbkawski et al. (Stip Ct,Kings County; index No. 506164/2017) and Machon Chana Women's Inslitute Inc. V YO.\·si Spalter et. ar (Sup Ct, Kings County, index No. 509876/2017), 4 [* 4] 4 of 24 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 INDEX NO. 503045/2015 RECEIVED NYSCEF: 07/29/2022 On April 9, 2019,ZalmanI.,abkowski, Teleshevsky; and Bronstein served and filed their joint answer to plaintiffs amended complaint, which consists of a one sentence statement that they joined in full in the answer of Sara Labkowski dated October 29, 2015 as if fully set forth therein (NYSCEF Doc No. 43 8). On April 19, 2019, plaintiff served its first notice for discovery and inspection and first set of interrogatories on Zalman Labkowski, Teleshevsky, and Bronstein (NYSCEF Doc Nos. 482,483,484). By a consent to change attorneys filed on September 19, 2019 (NYSCEF Doc No. 439), defendants rctairted new counsel, Abrams, Fensterman, Fensterman, Eisman, Formato, I;-errara; Wolf & Carone, LLP. On December 30, 2019, plaintiff filed a motion to compel responses to its discove1y requests, under motion sequence number 13 (NYSCEF Doc No. 442). On January 17, 2020, defendants' attorney, Amy B. Marion, Esq., a partner With the law firm of Abrams, Fensterman, Fenstcrman, Eisman, Formato, Ferrara; Wolf & Carone, LLP, opposed this motion on the ground that i1 was moot hecaL1Se on that day, January 17, 2020, her law fitm transmitted Zalman Labkowski, Teleshcvsky, and Bronstein's discovery responses to plaintiffs counsel (NYSCEFDoc No. 466). Zalman Labkowski, Teleshevsky, and Bronstein served their discovery responses, which are dated January 17, 2020, on plaintiffs counsel (NYSCEF Doc Nos. 488, 489, 490}. On March 10, 2020, plslintiff's attorney; Mark S. Prey, Esq., s:.erv.ed a deficiency letter upon defendants' counsel regarding these discovery responses, and requested that they set up a time to discuss each tefercnced docµment request and response (NYSCEF [* 5] 5 of 24 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 INDEX NO. 503045/2015 RECEIVED NYSCEF: 07/29/2022 Doc No. 4-79). On Match 12, 2020, plainti ffwith drew motion sequence' numbe r 13, on consent and withou t prejud ice (NYSC EF Doc No, 471). On March 11, 2020, plainti ff served a notice to take the deposi tion ofTelc shevsk y (NYSCEF Doc No. 499). By an email dated April 30, 2021, plaint iffs counse l informed defendants' attorneys that it had been over three months since they promis ed to respond to his deficiency letter in this matter dated March 10, 2020, and that they also had refused to schedule the deposi tion of Telesh evsky, which had been notice d for April 16; 2020 (NYSCEF Doc No. 480). Defend ants' attotneys have taken the position that defendants will not procee d ,vith Telesh evsky' s deposition, nor any deposi tion in this case, unless Jonathon Bachra ch, Esq., who reptese nts S paltcr and I-fotowitz in the 2017 Wome n's Institute action, attends the deposition. On Februa ry 7, 2022, plainti ff filed its instan t motion (NYSC EF Doc No. 473). Defendants oppose plaint iffs motion . The Parties; Contentions In suppor t of its motion , plainti ff argues that discov ety sanctions should be impose d on Zalma nLabk owski, Telcsh evsky, anq Bronst ein,pu rsuant to CPLR 3126, based on their failure to provide proper responses to their discovery requests and Telesh evsky' s refusal to appear for deposition. Plaint iff contends that Zalrna n Labko wski, Telcsh evsky, and Bronst ein's responses to their notice for discovery and inspec tion show that they do not have any docum ents which suppor t their claims that they are the sole and exclus ive members of the board of trustee s of Cong. Macho n Chana. 6 [* 6] 6 of 24 INDEX NO. 503045/2015 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 RECEIVED NYSCEF: 07/29/2022 Plain tiff asserts that Zalma n Labkowski, Telesh evsky , and Brons tein, rather than adtnit that tlwre are no documents supporting their claims, have attem pted to dodge the issue and :avoid directly stating that there are no documents, Plaint iff states thatZ alrnan Labkowsld, Tclesh cvsky , and Br6ns tein's responses ate vague and evasive and fail to designate docum ents which are responsive to its requests. Plaint itLcon tends that with regard to the most basic docum entsth at go to the hearto fZalm an Labko wski, Tel:eshevsky:, and Bronstein 's claim that they constitute the "true" board of truste es of Cong. Machon Shana, neither Zalma n Labkowski, Teleshevsky, nor Brons tein can produce, identify, or point to a single document to suppo rtthei r claim. Plaint iff argues that Zalrnan Labkowski, Telesh evsky , and Brons tein have engag ed in bad faith games mansh ip becau se their responses, rather than identifying specific documents, merely state that the documents are already in plaint iff's possession, refer to 1,682 pages of docum ents which were previously produced by prior counsel without specifying the respo nsive pages, and refer to ''documents produ ced in the litigation of all actions thus far." Plaint iff argues that Zalman L.abkowski, Teleshevsky ; and Brons tein do not have the requested documents, and that their responses are design ed to avoid havin g to state this, and/or to avoid havin g to subm it to the court detail ed affida vits of due diligence specifying what efforts were !Tlade to comply with their discovery ob ligations. Plaint iff points out that While the crux ofdef ondan ts' contentions in this action is that Zalm an Labko wski, Teles hevsk y and Bronstein are the sole memb ers of the board of trustees of Cong. Mach on Chana, and that there have never been any other trustees other than Rabbi Natha n Gurar y, when Zalm an Labkowski, Telesh evsky , and Brons tein Were 7 [* 7] 7 of 24 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 INDEX NO. 503045/2015 RECEIVED NYSCEF: 07/29/2022 requested to. produce or identify sp~cific document s to substantiate their claiins, they could only state that it has the docum¢nts .in its possession, or that the documents have already been produced, while being. unable to specifically identify the doct1111ents to which they are ref¢rring. Plaintiff argues ·that the court should conditiona lly strike Zalman Labkowsk i, Tele.shevsky, and Bro11stein's answer and/or direct each of thein · to submit a detailed statement stating under mith that the documents do not exist, the. reasons the documents do not exist, and the. attempts that were 111ade tq find the reque.sted docµm~nts, in.eluding the dates and places wlu~re a search to obtain the docutnents was made, the per.sqns spoken to ih c..011du.cting their searc::h, and· thc:results of.such search. Plaintiff further contends that Zafman Labkowski, 'releshev·sky, and Bronstein 's interrogatory responses ai;e facially inadequate and arc willfully desi.gned to avoid their obligation to respond in a good faith :and straightfonvard 111.anner to interr.ogatories which are neither overbroad nor· uppressive . Plaintiff additionally as·serts: th~t Teleshevsky is improp¢rJy tefosfog to appear for depos.ition due to defendant s' counsel~ s insistence that Jonathon Bachta:ch, Esq., viho docs not reprcsenUmy party in this action, niust be pfasertt. In opposit1011 to plaintiffs moticin, defendant s' attorney, Amy B. Marion. Esq., asserts that in January 202 l, defortdantst,pload.~d their prior ~ttorney' s productiu n of 1,682 documents to plaintiff. She further asserts :that in an einail dated June 27, 2019, defendant s' pdoi- col(nsel told plaintifl1s 'attorney that ·~~there are no mote document s ftom the new defendants or people with knowledg e that you don't know about" (NYSCEF Doc. No. 485). 8 [* 8] 8 of 24 INDEX NO. 503045/2015 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 RECEIVED NYSCEF: 07/29/2022 Zalma n La,bkowski, Telesh evsky , and Brons tein, by their attorn ey, Ms. Mario n, Esq., conten d that they respo nded to plaint iff's first notice for discov ery and inspec tion (NYS CEF Doc Nos. 488, 489, 490) and first set of inte1rogatories (NYS CEF Doc Nos. 496,4 97, 498). They argue that their responses compl ied with their discov ery obliga tions and arc suffic ient to avoid the strikin g of their answer. Zalma n Labko wski, Telesh evsky , and Bronstein assert that they have inform ed plaint iff that they are willin g to proce ed with Telesh evsky 's depos ition so long as Mr. Bachr ach, Esq. attend s this deposition. Zalma n Labkowski; Telesh evsky , and Brons tein also contend that plain tiffs attorn ey, Mark S. Frey, Esq., failed to comp ly with Kings Count y Supre me Court Unifo rm Civil Term Rules, Pmi J, Comm ercial Divis ion Rules, Rule I 8, and on this basis, the court shoul d not consid er ' ' or address plaint iff's motion. Discu ssion Initially, the court notes that Zalma n Labkowski, Tclesb evsky , and Brons tein's opposition to plaint iff's motio n is largel y based on their conte ntion that the court is precluded from consi dering it based upon plaint iff's failure to contp ly with Kings Count y Supre me Court Unifo rm Civil Term Rules , Part J, Comm ercial Divis ion Rules, Rule 18, which provides as follows: "Disc losure Disputes; Partie s mustc omply with the Unifo rm Rules ,§ 202.7 0 (g), Rule 14, regard ing consultation amon g couns el prior to contac ting the Court. lf couns el are unabl e to resolv e a dispute, the party seekin g Court intervention shall send a letter to the Court, of no more than two (2) pages , upon notice to all partie s, descri bing the problem and the relief reque sted. Such letter may be answe red within eight (8) days by Tetter of no more than two (2) pages, also on notice to all parties. The party reque sting relief shall then CQntact Cham bers to arrang e a confe rence (prefe rably by teleph one) to resolv e such dispute; If no effort is made by counsel to sched ule such 9 [* 9] 9 of 24 INDEX NO. 503045/2015 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 RECEIVED NYSCEF: 07/29/2022 conference, the Court will infer that th¢ matter has been resolved and· will take no action. Tll.e Court may ordefthat a m.otiqil be.made. but.no discovery motion will he entertained without prior compliance With this rule.,; Defendants assert that plaintiffs attorney; tvlr. Frey, Esq:, did not .comply w_itp this rµle prior to. filing the. instant motion, and that "no discovery motion will be entertained without prior compliance with this rule.'' .De.fend ants do noi deny that plafotiffs attorney sent a letter to the court; of no more than two pages, describing the issues and the relief requested in compltance with this rule. Defendants' attorney, M.s. Marion, Esq . , does not claim to have answereq. this letter (se.e 22 NYCRR.202.70 [g]? rule 14 [providing that"any affected opposing party or rion-party shall sµbrnit a. responsive letter~']). $he .-states_, however, that plah1tiff s attorney did not colllply with the Rule~s requirement of arranging for a court conference-to resolve the dispute, and that 110 such conference was ever h.eld. Mr. Frey, Esq., in r.esportse,_ explains that h~ did, in fact_, contact Chc1;mbel".S after several weeks had passed: an.d defendants' counsel had not responded to his letter to th~ court setting for.th th¢ :natµre of the discovery dispute. in this action~ He states that he inquired if his letter Jlad been ·received ·and if Chambers had received a response from defendants' counsel. He sets forth that he was advised that his letter had been rec.eived, that no. r.esp.onse had been teceived from def~rtdants" c0µnsel, that the courtwa_s aware of his reqµest far a pn>,motion conference. and that if he did not hear from C_haml;1ers. within two weeks', he should take that as pennissron to file a motion. After .not hearing from Chambers for two weeks; Mr. Frey filed p"lµintiffs motion. 'thus, plaintiff has demonstrated sufficient compliance v./ith Co.m111.crcial DiV.ision Rule 1.8. The court shall, therefore, address plaintiffs motion oh the. _merits, 10 [* 10] 10 of 24 INDEX NO. 503045/2015 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 RECEIVED NYSCEF: 07/29/2022 Under CPLR 310 I (a), "full disclosure" is required for ''all matter material and necessary in the prosecution or defense ofan action." CPLR 3126 provides that if a party ''refusesto obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been discfosed/' the court ltl.ay, among other things, render "an ·order that the issues to which the information is -relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party" seeking disclosure; "ah order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, ... or from using certain witnesses"; or ''an order striking out pleadings or parts thereof." The court has '""broad discretion to oversee the discovery process""; (Henry v Datson, 140 AD3d 1120, 1121 [2d Dept 2016], quoting Maiorinov City a/New Yotk, 39 AD3d 60 I, 601 J2d Dept 2007], quoting Castillo v Henry Schein, Inc., 259 AD2d651, 652 [2d Dept 1999]). "The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violationsis addressed to the court's discretion" (Crupi v Rashid; I 5 7 AD3 d 858, 859 [2d Dept 201 SJ; see also Desiderio v Geico Gen. Ins. Co .• 153 AD3 d 1322; 1322 [2d Dept 2017]; Pesce vFernandet, 144 AD3d 653,654 [2d Dept 2016]; Krause v Lobacz, 131 ADJd 1128, 1128,.J 129 [2d Dept 2015]; Kanic Realty Assoc., Inc~ v Su/folk County Water Auth., 130 AD3d 876, 877 [2d Dept 20151, Iv dismissed 27 NY3d 974 [2016]; Crystal Clear Dev;, LLC v Devon Architects ofN.Y., P.Cl 127 AD3d 911,913 [7d Oept 2015]; Friedrnan; Ha,fenist, Langer & Kraut v Rosenthal, 79 AD3d 798, 800 [2d Dept 20ld]). .11 [* 11] 11 of 24 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 INDEX NO. 503045/2015 RECEIVED NYSCEF: 07/29/2022 ''Before a court invokes the drastic remedy of striking a pleadin g, or even of preclud ing al I evidenc e, there must be a clear showin g that the failure to cornply with courtordered discove ry was willful and contum acious'' (Crupi, 157 AD3d at 859; see also Henry, 140 AD3d at 1122; Singer v Riskin, 137 AD3d 999, 1001 [2d Dept 2016]; Krause , lJI AD3d at 1129; Stone v Zinoukhovq, 119 AD3d 928,92 9 [2d Dept 2014]; Friedm an, Harfenist; Langer & Kraut v Roseillhal, 79 AD3d at 800). "'Wi1lf ul and contum acious conduc t may be inferred from a patty's repeate d failure to comply with court,-o rdered discovery, coupled with inadequ ate explana tions for the failures to comply ... or a fc1Hure to comply with court-o rdered discove ry over an extende d period of time'" (Stone, 119 ADJd at 929, quoting Rode City Sound, Inc. vBashi an & Farbei•, LLP,8 3 AD3d at 686,. 687 [2d Dept 20 l lJ; see also Pesce, 144 AD3d at 654; Friedm an, Harfenist, Langer & Kraut, 79 AD3d at 8()0). Significantly, there were no prior discove ry orders which Zalrnan Labkow ski, Teleshe vsky, and Bronste in disobey ed. Rather, plaintif fs motion is based upon Zalman Labkow ski, Telcshe vsky, and Bronste in's failure to fully respond to plaintif f's first notice for discovery and inspe-ction and first set of interrogatories, and Tekshe vsky's failure to appear in respons e to plaintif f's notice of deposition. There was also no repeate d failure to comply or pattern of noncom pliance and delay which could give rise to an inferen ce of willfulness. Zalm:an Labkow ski, Telcshe vsky, and Btoriste in did not refuse to respond to plaintif fs first notice for discove ry and inspecti on and first set ofjnterr ogatori es, but gave inadequate responses. Thus, the court does not find that the extrem e and drastic sanctio n of striking Zalman Labkow ski, Teleshe vsky, and Bronste irt's answer is warrant ed here. 12 [* 12] 12 of 24 INDEX NO. 503045/2015 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 RECEIVED NYSCEF: 07/29/2022 Rather, the appropriate re1nedy is to dircctZalman Labkowski, Teleshevsky, and Bronstein to provide supplemental responses to plaintiff's first notice for discovery and inspection and first set of interrogatories and to direct Teleshevsky to appear for deposition; as set forth in detail below (see CPLR 3124), With respect to Zalman Labkowski, Te1eshevsky, and Bronstcin's responses to plaintiffs first notice for discovery and inspection propounded to Zalman Labkowski (NYSCEF Doc No, 482), document request number 1, requested the minutes of meetings of Cong. Machon Chana, including; without limitation, the minutes concerning the election oftrustecs,, the election of officers:, the premises, the eviction procecding 1 and the initiation of any legal actions by or on behalf of or against Cong. Machon Chana. Document request number 2 requested documents concerning the meetings of the board of trustees of Cortg. Machon Chana, including, without limitation, the notices of mc,etings, the scheduling of meetings, and the minutes of meetings. Document request number 3 requested all notes 1 memos, or rne1norandum of any meetings of the board of trustees of Cong. Machon Chana attended by Zalrnan La bkowski as a claimed trustee of Cong. Machon Chana. Zalman Labkowski's response (NYSCEF Doc No. 488) for all three of these document requests each stated as follows·: "This request seeks documents in [p]laintiffs own possession. Without waiving [any] General Objections ... responsive, non-privileged documents that are in [d]efendanfs possession have been provided as part ofprior's counsel;:S May 23, 2017'production in the instant 2015 cas~, volumes T-11,. DEF_000Q0 1.. 0Q063 I and DEF_000632-00 I 682. Additionally without waiving any objections h~tetof see Bates# AFDEf'0000O.I-0O0011.'' 13 [* 13] 13 of 24 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 INDEX NO. 503045/2015 RECEIVED NYSCEF: 07/29/2022 This response is patently inadequate. It fails to specifically designate the documents m plaintiffs own possession responsive to this request or distinguish between the documents that are responsive to document request numbers l, 2, and 3, Furthennore , it fails to specifically identify which documents that were previously produced by prior counsel are responsive to each document request. Zalman Labkowski, Tcleshevsky , and BI'onstein have broadly stated that these documents arc to be found somewhere within DEF Bates# 000001-0006 31 andDEF Bates# 000632-0016 82, which cqnsistof 1,682 pages, without specifying which pages ate responsive to which request. It is also noted that plaintiff asserts that these pages were previously produced as Sara Labkowsld's production of documents (prior to Zalma·n Labkowski being named as a defendant· in this action) and that none of them are responsive to its request Plaintiff states that the docunie·nts Bates stamped AFDEF 000001-0000 11, referred tnby Zalman Labkowski, are documents that it had previously produced in this action, which do not support Zalman Labkowski, Telcshcvsky, and Bronstein 's claims. Telcshevsky 's tesponse to plaintiffs first notice for discovery and inspection (NYSCEF Doc No. 489) and Bronstein's response to plaintif'fs first notice for discovery and inspection (NYSCEF Doc No. 490), in response to document request number I, both state: "See Zalman Labkowski's response to Document Request [number] 1." Tel esh cvs ky and Bronstein' s res pon scs to doc urn ent request number 2 similarly state: "See Zalmat1Labk dwski's response to Document Request [number] 2.'' Teleshcvsky and Bronstcin's responses to document request number 3 both state as follows: 14 [* 14] 14 of 24 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 INDEX NO. 503045/2015 RECEIVED NYSCEF: 07/29/2022 "Without Waiving any objections, responsive, non-privileg ed documents that are. in [d]efendant's possession, have been provided as part ofprior counsel's May 2J; 2017 production in the instant 2015 case, volumes l~II, DEF_O0000 l-000631 and DEF_000632 -DEF_00168 2, Additionally , see documents produced herein and documents produced in the litigation of all actions thus faf, and thus is equally available to [p]laintiff,no new documents are in [d]efendant's possession." These responses are inadequate. These responses merely refer to Zalman Labkowski 's vague responses referring generally to 1;682 pages of documents, which were produced by defendants' prior counsel before Teleshevsky and Bronstein were named as defondants in this action, They broadly reference numerous pages of documents without any specificity as to what pages refer to which documents. Furthermore , the responses to document request number 3 direct plaintiff to not only all of the documents produced to date in this action, but also to all of the "documents produced in the litigation of aH actions thus far.'; Since Teleshevsky and Bronstein claim that they have already produced these documents, they must specifically provide the Bates stamped numbers of the pages responsive to each ofthesc separate document demands. Zahnan Labkowski, Teleshevsky , and Bronstein cannot refer gcneraUy to numerous pages, but are required to specifically indicate where previously produced responsive documents may be found (see Tarkan v Safdieh; 67 Misc 3d 1209[AJ, 2020 NY Slip Op 50480[UJ, *I [Sup Ct, NY County2020 ]; Bo/tin v Boardof Managers of the 447-453 W 18th St, Condominium, 2020 NY Slip Op 30434[UJ, *4 [Sup Ct, NY County 2020]; DC Cruises LLC v L&L Tours, Inc., 2014 WL 2930757, *3 [Sup Ct, NY County 2014]). Zalrrtim Labkowski, Telcshevsky , and Bronstein also -cannot evade their disclosure obligations by suggesting that the documents are equally accessible to plaintiff without 15 [* 15] 15 of 24 INDEX NO. 503045/2015 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 RECEIVED NYSCEF: 07/29/2022 identify-ing the documents (see- Sanon v Sanon, 51 Misc 3d 1214[A], 2016 NY Slip Op 50657[U]; *3 [Sup Ct, Monroe County 2016j). Plaintiff claims that.Zalman Labkowski, Teleshcvsky, and_ Bronstein &re attempting to avoi_d sta_ting_ that_ they have no documents responsive to these -requests, and that._ no doc;:umentst_o support their claimsin this action exist. lfsuch document s arc not inZahnan Labkowski, Tdeshevsky~ and Bronstefr1·•s possession or do not exist, Zahnan Labkowski, Tcleshevsky, and Bronstein are directed to provide to plaintiff, within 30 days ofthe date of this decision and o.r_der, with notice o.feniry thereof;__.affidavits by therri, describing the search made-by theni fot "these _documents and ex.plaining why such documents are· not "jn their possession, do not ex·ist, and/or why they were not found (see Castillo vHenry Sche"in, inc., 259 AD2d 651, 652 [2d Dept 1999]; Mor~e v Lovelive TV US, Inc., 69 Misc 3d I224[A], 2020 NY Slip Op 51481[0-j, *!Owl I [Si,.Ip Ct. NY County 2020]; DC Cruises LLC., 2014 WL 2930757, *3). The court.also notes that.Zalman Labkowski,Te_l<:!shevsky, arid Br.onstein's failure to. provide information in .their pos·session would preclude them from later offering 11roof"rcgarcling that information at trial (see Bivona v Trump Mar. Casino Hotel kesoit, 11 AD3d 574,575 [2dDep12004}; Corrielv Volkswqgfm ofAm., 127 AD2d 729, 731 .[2d Dept I 987]). Oncument request munber -4 re.quests Zalman Labkowski, T~-l~shGvsky, and Bicm·stei11 to provide docllments concerni11g the statements made in affirmations dated :May s·, 2015 by eac:h oftherri submittedin this case that: (a) "at all times since the formation of the Congregation in 1973, to da.tc. ... Sara: Labkowsk i :has .acted as the president of the Congregation,_" and _(b) 1'[w].ith alithorizat.km from 16 [* 16] 16 of 24 the board of trustees Sara Labkowsld,. INDEX NO. 503045/2015 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 RECEIVED NYSCEF: 07/29/2022 as president, has handled 'and supervised a.II the. operations of the Congregation, uninterrupted~ tor over 40years and continues to act in that caj:nicity.'' Zahnan Labkowski, Teleshevsky, and Bronstein each responded that "This request is nearly identical to·· Spalter and Horowitz-'·s Document Request No. 3 in the 2017 case bearing index number 509876/2017. Without waiving the General Objections set forih,above,. responsive, non-privileged documeiltsthat are in [dJefondar(t's possession, havebt!en provided with Sara Labkowski's Re_sponse .:to SpaJter BIJd Hor.bwitz's Intctrogatori1.?s and DocumentRequests in the 20l7"·case withthelndex No._.50987(;/2017,.·B~tes # AF000261-AF00 0427. '' 1n this -response; Zahnan Labkowski, Teleshevsky, and Bronstein are referring to Spalter and Horowitz's document requests in the; 20l7 Women's Institute action. ·spalter and Horowitz arc not. parties to the instant action. Furthermore, the 2017 Women's Institute 'action concerns, ih part, the identity of the board oJ trustees of tho Women ;s I.nstitute, which is a wholly separate and distinct entity ftOni Coii.g: M_achon Chana. There .are no claims in the 2011 Woinen's Institute action ccmcernirrg Cong. Machon C}iana,.·_and there arena longer any claims.in this action concctningthe Women's Institute. ·Moteover; the. docmnent referred to in response to document re·qucst number 4 as Bates-# AF000261 (NYSCEF .Doc; No, 492) is- identifi(!d at the top--as: nMachon Chana Women~.s Institute Mail - Re: Machon_ Chan~ board." Tl}is docutn~nt concerns the board of trustees ofthe Women's Institute, rather than the board of trustees of Cong. Machon Chana. The docurn.ent at Ba.t¢_s # AF000282;.AF000283, referenced .i-n this response) -which was prodµce:d in the 201 ~ Women's I1Jstitµt_e action, consists ofthc minutes of the 2016 annual meeting of the board of directors f9r the Women's Institute (NYSCEF Doc No. 17 [* 17] 17 of 24 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 RECEIVED NYSCEF: 07/29/2022 493) .. This document lists the.mernt,·ers . INDEX NO. 503045/2015 . of the 1;,oard of directors of the Women's lnstituie as Riva Teleshevsky_, Sara Katzman, Sara Labkowski,_ Rabbi .Zi;;Jmari Labkowski, Kahn.an Weinfeld,and Pam Newman. Piaintiff points out that in the instant action, defendant~ haye ·consi"stently a.:sscrted for years that the only- ·persons who have ever served as trustees of Cong. Machon Chatl_~ arc Zal_man Labkowsk.i, Riva Teles_hevsky, .Baila Bronstein1 and Rabbi Nathai1 GurarY- As contended. by plaintiff, the docmnents r~ferred to in Zalman Labkowski, Teleshevsky, and Broristein's response, which have been submitted to the :_court, arc not ev-idence. of SaraLabkowski' s authority-to act on behalf of the Cong. Machon Chapa, but are only related to. the Worn.en's Institute. 'The remaining- pages .referred, to in response to documentreques i number 4 have notbei;nsubmitt ed to. the court. Zaht1an Labkqwski, TeJeshe'vsky, and Bronstein must supplement their response to document request nun1ber 4 to specifically state wh_iqh pat1ic.tilar Bates numbered pages respond to this documei1t request. If they do not possess such respons_ive dc;:i.cuments, they must.eac:h so state under oath. As to tnany of the other resp.onscs to plaintiffs document requests (rn particular, document req.4estntiiribers 5.--12), Zalnian Labkowski'_s-.responses either state that plaintiff already has aJL the requested documents, directs plaintiff to sec all_ of the documents previously produced herein by prior counse\ or directs plaintiff to see ''documents produced. in the litigation. of all actions- thus fart one of which is the 20 l 7 Women's lns"titute ..ac:tion. The responses ofTeJeshevsky and Bronstein follow a ·sirnilar _pattern; br rely upon Zalinan Labkowski's responses to similar requests. All OfTelcshevsky and Bt01istein's tesponses which rely on Zalman Labkowski's responses fail to identify any i8 [* 18] 18 of 24 INDEX NO. 503045/2015 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 RECEIVED NYSCEF: 07/29/2022 specific documents. To the extent that at! oftheserespo nses pointto previously produced documents, they fail to specifically identify which of the previously produced documents upon which they are relying. Zalman Labkowski, Teleshevsky , and Bronstein ate directed to supplement their responses. To the extent that Zalman Labkowski, Teleshevsky , and Bronstein failto supplement their responses to plaintiffs document requests, they shall be precluded from relying on any other documents at trial or in opposition to a motion for summary judgment by plaintiff (see Dvortsov v Levy, 74 Misc 3d 1229[AJ, 2022 NY Slip Op. 50253[UJ; *4[Sup Ct, NY County 2022]). As to plaintiff's interrogatori es, interrogatory number l requested Zalman Labkowski 1 Teleshevsky~ and Bronstein to identify all witnesses known to him or her "with knowledge of· information material and necessary to the subject matter of this action.'' Zalman Labkowski, Tclcshevsky , and Bronstein each responded that: "(a]ll witnesses have been identified throughout the extensive litigation in this case. Additionally , [p]Jaihtiff is well aware of aII individuals with knowledge of material information as they have all been employed by and associated With Congregatio n Machon Chana for years." This response is inadequate,m ddcficient. Zalman Labkowski, Teleshevsky , and Bronsteirt are required to properly answerthis interrogatory by specifying which witnesses iheyassert have knowledge to substantiate the claim that they have each been a merpber of the board of trustees of Cong. Machon Chana for the period of time asserted by them. They rnust supplement their answer to this interrogatory to provide the names ofthese witnesses and al I responsive information in their possession {see Tarkan, 2020 NY Slip Op 50480 (U], 19 [* 19] 19 of 24 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 INDEX NO. 503045/2015 RECEIVED NYSCEF: 07/29/2022 *1-2:; Site Safety, LLC v Gunnala, 68 Misc 3d 1213[A], 2020 NY Slip Op 50928[U], *2 [Sup Ct, NY County 2020]). Interrogatory number 2 requested that Zalman Labkowski, Teleshevsky, and Bronstein "state whether to[his or her] personal knowledge documents exist which contain information material and necessary to the subject matter of this action, including without limitation documents concerning [p]laintiff, the [p]remises and/or the [e]viction [p]roceeding, and if [his or her] answer to this interrogatory is in the affir1native," to provide, information sufficient to identify the custodian(s) and location of such documents and a general clescription of such documents. Zalman Labkowski, Telcshevsky, and Bronstein each responded that "responsive, non-privileged documents that are in [his or her] possession, have been provided with prior counsel's May23, 2017 prnductionin the instant 2015 case, volu1nes I-II, DEF 000001-00063 land DEF- 000632-DEF- 001682." .. ~ Plaintiffpoints out that Zalrnan Labkowski, Teleshevsky, and Bronstein each refers to all of the documents previously produced by Sara Labkowski, without identifying any documents in particular; Plaintiff asserts that the documents previously produced by Sara Labkowski do not speak to the issues. Zalman Labkowski, Teleshcvsky, and Bronstein may supplement their answers to this interrogatory by providing all responsive information in their possession (see Site Safety! LLC, 2020 NY Slip Op 50928[U], *9}. If Zalman Labkowski, Teleshevsky, and Bronstein intend to .solely rely on these documents and/or if no docurnents exist vihich are responsive to this interrogatory_, they should each provide a sworn statement to that effect (see Dijksh·a v Millar El, lndys., 228 AD2d 469, 470 [2d Dept 1996]; Motse, 2020 NY SHp Op 51481[UJ, *10'."11). 20. [* 20] 20 of 24 INDEX NO. 503045/2015 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 RECEIVED NYSCEF: 07/29/2022 W'ith respect to Tcleshevsky's deposition, despite the fact that the motion to consolidate this action with the Women's Institute action was denied, defendants' current counsel is insisting on treating these matters as if they have been consolidated for discovery. Defendants-repeatedly indicate that are,willingtoproceed With depositions, hut only on the condition thatall coµhsel for the related actions participate, claiming that the court directed thatthcsc actions be resolved together. Defendants specifically assert that they will nbtproceed with Teleshevsky's withoutJorrnthon Bachrach, Esq.'s attendance at the deposition. As previouslynoted, Mr.Bachrach, Esq. rcpresentstwo of the defendants in the 201'7 Women's Institute action, but does notrepresent any of the parties in this action. Plaintiff's attorney, Mark Frey, Esq., affirms that he spoke with Mr. Bachrach, Esq'..\ who advised him that he woulcl 11ot be attending any depositions in this action since he does not represent arty pal'ties in this action. Mr. Frey, Esq; states that Mr. Bachrach, Esq. does not understand why his presence is necessary in an action in which he does not represent any of the parties, and in which his clients, Spalter and Horowitz in the 2017 Women's Institute acti ort, have no in tcrest in the outcome. Plain ti ff argues that de fend ants 1 . insistence that Mr. Bachrach, Esq. must be present in order to hold Teleshevsky's d~position is a delaying tactic by them. Defendants' refosal to have Teleshevsky submit to a depositfo11 without Jonathon Ba¢hrach, Esq. being present is unfounded. Mr. Bachrach, Esq; riced not be pres~rit sihce he is not ail attorney involved in this action. The court had denied consolidation of this action with the Wornen 1 s ln~titute uction in its July 3, 2019 order (NYSCEF Doc No,. 500) and never directed that Mr. Bachtach, Esq. must be present for Teleshcvsky's deposition 21 [* 21] 21 of 24 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 INDEX NO. 503045/2015 RECEIVED NYSCEF: 07/29/2022 to proceed inthis_ action. Nevertheless, it appears that defendants may have misconstrued the court's July 9, 2019 mder(NYSCEF Doc No. 504), as opposed to acting willfully or contumaciously in failing. to schedule Teleshevsky's deposition. In this regard, the court . . considers that there has been no courtorder directing Teleshevsky's deposition, with which she has failed to comply. The court, therefore, declines to strike Teleshevsky's answer, and finds thatthe appropriate remedy is to compel Teleshevsky to appear for a deposition and direct a conditional order of preclusion (see Brodsky v Amber Ct: Assisted Living, LLC, 147 AD3d 810, 8 IO [2d Dept 2017]; Patelv Deleon~ 43 AD3d 432, 432-433 [2d Dept 2007]; Williams v Ryder TRS, inc:, 29 AD3d 784, 785 [2d Dept 2006]; Viteritti vGelfand, 289 AD2d 566, 567 [2d Dept 2001 ]). The court notes that a repeated failure to appear for a deposition, coupled with the failure to proffer a reasonable excuse for that failure, supports an inference that such failure is willful and contumacious (see Bouri v Jackson, 177 AD3d 94 7, 949 [2d Dept 2019]; Apladenaki v Greenpoint Mortg. Funding, inc., 117 AD3d 976; 977 [2d Dept 2014J; Castrignano v Flynn, 255 AD2d 352,353 [2d Dept 1998]). Thus, the court directs that in the event that Teleshcvsky fails to appear for her deposition within 3 0 days of service of a copy of this decision and order with notice of entry thereof, she shall be precluded from tcstifyingatthe trial of this action in support of defendants' claims and defendants shall be precluded froin introducing any evidence that Tcleshevsky is a mernbet of the board of trustees of Cong. Machon Chana. 22 [* 22] 22 of 24 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 INDEX NO. 503045/2015 RECEIVED NYSCEF: 07/29/2022 Conclusion Accordingly, plaintiffs motion is granted tb the extent that (I) Zalman Labkowski, Teleshevsky, and Bronstein: shall provide supplemental responses to document request numbers 1, 2, 3, 4, and to the extent necessary document request numbers 5-12, which specifically identify which of the previously produced documents upon which they .are relying, and specify which Bates stamped numbered pages are responsiveto which request within 30 days of service upon them of a copy of this clecision and order with notice of entry thereof; (2} if docmrtents responsive to plaintiffs document requests are not in Zalnian Labkowski, Teleshevsky, and Bronstein's possession or do not exist, they are directed to provide to: pfaintiff: within 30 days of service upon them of a copy of this decision and order with notice of entry thereof, affidavits by them, describing the search for these documen:ts and explaining why such documents ate not in theirpossession, do not exist, and/or why they were not found;.(3) Zalman [;abkowski, Teleshcvsky, and Bronstein are directed to supplement interrogatory number one by identifying all witnesses known to him or her with knowledge of infonnation material and necessary to the subject matter of this action within 30 days of service upon thGm ofa copy of this decision and order with notice of entry thereof; (4) Zalman Labkowski, Teleshevsky, and SrnnstGin are directed to supplement interrogatory number two by providing all responsive information in their possession within 30 days of service upon them ofa copy of this decision and order with notice. of en try thereof; if Zahpan Lab kowski, Tel eshevsk y; and B tons tein in tend to solely rely on the documents previously produced by Sara Labkowski and/or if no .documents exist · which are tespo ns ivc fo this interrogatory~ 23 [* 23] 23 of 24 they arc c:l ire.cted to provide a .swam INDEX NO. 503045/2015 FILED: KINGS COUNTY CLERK 07/29/2022 04:46 PM NYSCEF DOC. NO. 514 RECEIVED NYSCEF: 07/29/2022 statement to that effect within such time period; and (5) Teleshcvsky is directed to appear for a deposition at a time and place mutually agreed to by the parties, but in no event less than within 30 days ofservic_e upon them of a copy of this decision and order with notice of entry thereof, unless otherwise agreed to in writing b:y the patties. Jonathon Bachrach, Esq. need not be present at tli.is deposition. In the event that Telcshevsky fails to appear for her scheduled deposition, without arty reasonable excuse for an adjournment of her deposition, she shall be precluded from testifying at the trial of this action in support of defendants' claims and defendants shall be precluded from introducing evidence that Teleshevsky is a member of the board of trustees of Cong. Machon Chana. This constitutes the decision and order of the court. HON. LAWRENCE KNIPEL ADMINISTRATIVE JUDGE 24 [* 24] 24 of 24

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