Lliguin v DDG Dev. LLC

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Lliguin v DDG Dev. LLC 2022 NY Slip Op 33186(U) September 22, 2022 Supreme Court, New York County Docket Number: Index No. 152339/2018 Judge: Arlene P. Bluth 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. 152339/2018 NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 09/22/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. ARLENE P. BLUTH Justice ---------------------------------------------------------------------------------X RUBEN LLIGUIN, INDEX NO. MOTION DATE 14 152339/2018 09/19/2022 Plaintiff, MOTION SEQ. NO. 002 & 003 -vDDG DEVELOPMENT LLC,DDG PARTNERS LLC,180 EAST 88TH STREET REALTY LLC,CARNEGIE GREEN LLC, DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X DDG DEVELOPMENT LLC, DDG PARTNERS LLC, 180 EAST 88TH STREET REALTY LLC Third-Party Index No. 595865/2018 Plaintiff, -against- BMNY CONTRACTING CORPORATION, Defendant. --------------------------------------------------------------------------------X BMNY CONTRACTING CORPORATION, Second Third-Party Index No. 596000/2021 Plaintiff, -againstALLIED SAFETY CONSULTANTS L.L.C. Defendant. --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 168, 174, 175 were read on this motion to/for PRECLUDE . The following e-filed documents, listed by NYSCEF document number (Motion 003) 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 176 were read on this motion to/for VACATE/STRIKE - NOTE OF ISSUE 152339/2018 LLIGUIN, RUBEN vs. DDG DEVELOPMENT LLC Motion No. 002 003 [* 1] 1 of 4 Page 1 of 4 . INDEX NO. 152339/2018 NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 09/22/2022 Motion Sequence Numbers 002 and 003 are consolidated for disposition. The motion (MS002) by defendants DDG Development, LLC, DDG Partners LLC and 180 East 88th Street Realty LLC (collectively, “Movants”) was withdrawn (NYSCEF Doc. No. 177). The motion (MS003) by defendants DDG Development, LLC, DDG Partners LLC and 180 East 88th Street Realty LLC to inter alia strike the note of issue is denied. Background On April 8, 2022, the Court issued an order dismissing this case because the parties failed to update the Court about the status of discovery by a Court-ordered deadline (NYSCEF Doc. No. 79). The docket is replete with Court notices directing the parties to update the Court about the status of discovery and the parties failing to do so (see e.g., NYSCEF Doc. Nos. 63, 68, 73). Plaintiff then moved to vacate the dismissal and to restore the action to the trial calendar. The Court observes that Movants opposed the motion and asked, in the alternative, that there be an order directing the completion of all outstanding discovery. Second Third-Party Allied Safety Consultants LLC (“Allied”) also opposed the motion to restore this action. The Court granted the motion on July 14, 2022 and directed that a note of issue be filed by August 11, 2022 (NYSCEF Doc. No. 119). The Court observed that this should be enough time to finish outstanding discovery, given that all defendants had also failed to upload anything about discovery by the Court-ordered deadlines. In other words, the Court reasoned that if the other parties in the case (other than plaintiff) sought discovery they would have uploaded a discovery stipulation, sent a letter explaining the outstanding disputes or asked for a conference. Instead, no one submitted anything repeatedly until the Court finally dismissed the case. Plaintiff then filed a note of issue on August 9, 2022. 152339/2018 LLIGUIN, RUBEN vs. DDG DEVELOPMENT LLC Motion No. 002 003 [* 2] 2 of 4 Page 2 of 4 INDEX NO. 152339/2018 NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 09/22/2022 MS003 In this motion, Movants seek to strike the note of issue, to compel BMNY to provide all outstanding discovery, to compel all parties to provide all outstanding discovery and to extend the time to file a motion for summary judgment. They claim that discovery remains outstanding, including the deposition of a BMNY employee (this was also the subject of motion sequence 002, which is now resolved per stipulation). In opposition, plaintiff (who filed the opposition under the wrong motion sequence number) contends that Movants failed to establish that the desired deposition is necessary and that Movants waited until the last possible moment to seek to compel discovery. The Court denies this motion. Movants had more than enough opportunity to compel the disclosure of the allegedly outstanding discovery and now seek to essentially delay this case. The record before this Court clearly shows that once Movants realized that this Court was serious about enforcing Court-ordered deadlines, they decided to pay attention to the case. Movants’ initial notice of deposition for the purported BMNY employee is dated March 30, 2022 (NYSCEF Doc. No. 133) and yet Movant did nothing to enforce or pursue this request until August 9, 2022 (the same day the note of issue was filed). The Court finds that the letter requesting a conference by Movants dated August 5, 2022 (only six days before the note of issue deadline) does not constitute a genuine attempt to pursue discovery. Movants could have, but did not, raise this issue in the discovery stipulation signed by the parties in February 2022 (NYSCEF Doc. No. 76) as they likely already knew about this witness by then, but they did not bother seek the deposition. They could have uploaded a letter to the Court or requested a conference in advance of the April 2022 conference, but they did not complain about the lack of the deposition – or any discovery- and the case was subsequently 152339/2018 LLIGUIN, RUBEN vs. DDG DEVELOPMENT LLC Motion No. 002 003 [* 3] 3 of 4 Page 3 of 4 INDEX NO. 152339/2018 NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 09/22/2022 dismissed. They could have raised the issue immediately after the Court restored the case. Instead, they waited until a few days before the note of issue was due to suddenly become concerned about outstanding discovery. The demands they attach to this motion are dated February 28, 2022 (NYSCEF Doc. No. 160) and June 29, 2022 (NYSCEF Doc. No. 162). In other words, Movants decided to wait around, ignore Court orders, oppose restoration of this action, and now suddenly claim they want discovery they did not take any steps to secure. This case will remain on the trial calendar; the time to raise issues about outstanding demands has long passed. Accordingly, it is hereby ORDERED that the motion (MS002) by defendants DDG Development, LLC, DDG Partners LLC and 180 East 88th Street Realty LLC for various relief was withdrawn; and it is further ORDERED that the motion (MS003) by defendants DDG Development, LLC, DDG Partners LLC and 180 East 88th Street Realty LLC to inter alia strike the note of issue is denied. 9/22/2022 DATE CHECK ONE: $SIG$ ARLENE P. BLUTH, J.S.C. CASE DISPOSED GRANTED X DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 152339/2018 LLIGUIN, RUBEN vs. DDG DEVELOPMENT LLC Motion No. 002 003 [* 4] NON-FINAL DISPOSITION 4 of 4 X OTHER REFERENCE Page 4 of 4

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