Silberstein v Hancock

[*1] Silberstein v Hancock 2022 NY Slip Op 50752(U) Decided on August 10, 2022 Supreme Court, Columbia County Zwack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2022
Supreme Court, Columbia County

Charles J. Silberstein, Plaintiff,

against

Shawn H. Hancock and Charles J. Weinlein d/b/a Centerline Construction, Housatonic Architectural Services, LLC and Diego Gutierrez, Defendants.



Index No. E012018013319


Freeman Howard, P.C.
Attorneys for plaintiff
Paul M. Freeman, Esq., of counsel
Scott F. Owen, Esq., of counsel
441 East Allen Street
Hudson, NY 12534 Kushnick Pallaci PLLC
Attorneys for defendants Centerline Construction, Inc., Shawn H. Hancock and Charles J. Weinlein
Jeffrey A. Lhullier, Esq., of counsel
630 Johnson Avenue
Bohemia, NY 11716 Henry F. Zwack, J.

In this contract action, the plaintiff has moved pursuant to CPLR 3126 for an Order precluding the defendants from producing at trial "any documentary, testamentary, or any other evidence in any form from any party or non-party related to any labor, materials, or time Ed Diaz, or any of his agents, employees, subcontractors, and/or representatives, performed at 305 Tice Hill Road, Ghent, New York 12075 ("the subject premises"). The plaintiff further seeks an order [*2]precluding the defendants from "[u]tilizing Ed Diaz, or any of his agents, employees, subcontractors, and /or representatives, including Michael Gonzales, Juan Espinoza, Omar Carillo, Bryan Espinoza or any others as witnesses at the time of trial." The defendants oppose — particularly arguing that the relief sought is disproportionate for this discovery motion, that at most any failures on their part do not warrant a Conditional Order of Preclusion, and that the application is moot as they have provided a response.

According to the motion, during the deposition of defendant Charles J. Weinlein on June 14, 2021, he identified his subcontractors as Ed Diaz and his crew "of up to 8 people," and that it was Diaz who invoiced the defendants. The invoices included the number of employees used, the hours they worked, and the expenses incurred for labor and materials. This Court thereafter issued a Judicial Subpoena Duces Tecum, directing Diaz's appearance for a deposition, and also directing that he produce the invoices and supporting materials on November 18, 2021 — at which time Diaz failed to appear and failed to produce any of the requested materials. The Court then signed an Order to Show Cause directing Diaz to appear on April 6, 2022, which he again failed to do. The Court then issued an Order directing Diaz to comply with the document requests and to appear for a deposition on May 18, 2022, providing that if he failed to appear and produce the documents as directed, a hearing on contempt would be held on May 25, 2022. Plaintiff issued a Second Supplemental Demand for Discovery of Documents and Information on April 6, 2022, demanding they be produced by June 14, 2022. Plaintiffs ultimately withdrew the Order to Show Cause for Contempt following an appearance by Diaz at his May 25, 2022 contempt hearing and a representation from him that he would attend the deposition.

Now, in opposition to the instant motion seeking preclusion, the defendants assert that invoices were provided to the plaintiff's counsel on June 6, 2022, and also argue that they have not demonstrated a pattern on noncompliance, and that preclusion of this evidence would deny them their day in court.

For the reasons that follow the Court grants the plaintiff's motion for preclusion and strikes the defendants Answer and Counterclaims.

With all due respect to the defendants' arguments in opposition, the Court is well versed in the rules and procedures involving discovery — particularly the axiom that preclusion should only be imposed where the moving party establishes that the failure to disclose is wilful and contumacious. As to striking an Answer — while it is true that actions should be resolved on the merits whenever possible — wilful and contumacious behavior sufficient to warrant the striking of an Answer can be inferred from a pattern of noncompliance (Doherty v Schuyler Hills, Inc., 55 AD3d 1174 [3d Dept 2008]). Here, the plaintiff has satisfied his burden of demonstrating wilfulness by highlighting the defendants' repeated failures to comply with orders directing disclosure and the inadequate excuses offered for noncompliance. Now, as sufficiently demonstrated by the record, the burden was shifted to the defendants to offer a reasonable excuse — which they simply failed to offer (Espinal v City of New York, 264 AD2d 806 [2nd Dept 1999]).

The Court's review of the record amply establishes that, in the Court's view, the defendants have engaged in what can only be described as carefully orchestrated bait and switch in response to the plaintiff's discovery demands — in sum, conduct that was wilful and contumacious — to the abject prejudice of the plaintiff. To be clear, to say that the defendants' [*3]behavior is contumacious is an understatement. In fact, defendants' discovery behavior is a slap in the face to plaintiff and the Court — and striking the defendants' Answer is really the only reasonable remedy at this late date in an action pending since 2018, and with the trial scheduled for September 17, 2022.

However viewed, the determination to strike the Answer with Counterclaim is well-supported by the record. Here, the Court has rendered not one but two conditional orders of preclusion in this matter. Conditional orders are self-executing, and failure to comply with conditions of such an order by the court-specified date will render the order absolute (Shioya v Hanah Country Inn Management Corporation, 2022 WL 2719443 [3d Dept 2022]). Further, in both the Demand for a Bill of Particulars, and in Combined Discovery Demands served on October 18, 2018, the plaintiff requested (to no avail) all the information sought to be precluded by this motion. On July 19, 2019, the Court granted a conditional order of preclusion. Specifically, in that order the Court noted that " Item 17 provides: State the basis upon which Defendants rely for their allegation that Plaintiff was in breach of contract"—this is a question that the defendants must answer, as they allege that have not been paid approximately $300,000.00. Further, Item 18 asks for the invoices that represent the unpaid monies, and as such, the defendants must specify the pages where the plaintiff can reference those invoices (defendant submitted a "slew" of documents but did not specify which ones, if any, applied to the demands). As to Item 20, which refers the plaintiff back to the "slew" of documents provided without specificity, this question requires a detailed written answer, supplemented if necessary, by specific reference to the page number and description amidst the 'slew.' That the defendants believe all of these Combined Discovery Demands are 'annoying' and 'expensive to answer' is of absolutely no moment to the Court. In the Court's view, albeit compliance with discovery demands may be costly, time-consuming and burdensome, unless that hard work is put into a case, it will likely never settle or be ready for trial — hence the need for all parties to timely and fully comply with discovery demands."

By the August 18, 2021 compliance conference, and after plaintiff's had served a First Supplemental Demands for Discovery of Documents and Information dated July 21, 2021, documents necessary to support defendants counterclaim had still not been produced.The Court directed at that conference that the defendants respond within 30 days. They did not, and the Court issued another conditional order of preclusion at plaintiff's request, directing that the defendants "be and hereby are precluded from presenting evidence or giving testimony at trial in the above entitled action and the causes of action set forth in their complaint (sic)[FN1] are hereby stricken" provided no full and complete responses were provided within twenty (20) days — which they again failed to provide.

Additionally, the Court has conducted conferences which included various discovery and scheduling directives on no less than eleven occasions, including on: January 25, 2019, June 24, 2019, January 17, 2021, January 27, 2021, March 24, 2021, May 20, 2021, August 18, 2021, October 20, 2021, March 22, 2022, April 6, 2022, and May 25, 2022.

Now, remarkably, in opposition to the motion to preclude the defendants have produced no documents responsive to the actual basis for the defendants' counterclaim for $300,000.00.[*4]The invoices produced by Diaz on June 6, 2022 are remarkable for their inadequacy, and may even be a fraud on the Court. A review shows that they are basically identical, Diaz indicating some work being done, but are otherwise remarkably non-specific — in sum probative of nothing. He does not list the hours worked at each task, where the tasks specifically took place, the employees present, or the supplies used, nor does he break down the invoice between labor and supply costs. In the off chance that these could be admissible at trial, again, in the Court's view they are evidence of nothing, and for all intents and purposes nothing more than a sham or orchestrated attempt to frustrate the plaintiff's demand for discovery.

All this being said, the Court has broad discretion to oversee the discovery process (Wrubleski v Mary Imogene Basset Hospital, 163 AD3d 1248 [3d Dept 2018]) and included in that responsibility is the authority to require that discovery demands of all types be complied with, in a timely manner, and in keeping with the deadlines set in the preliminary conference order (Kihl v Pfeffer, 94 NY2d 118 [1999]. Having moved for preclusion, and being granted it twice, and the defendants now being precluded from offering any evidence which would demonstrate the existence of any meritorious claim, their Answer with Counterclaim is properly stricken (Henry v Lenox Hill Hospital, 159 AD3d 494 [1st Dept 2018]).

Accordingly, it is

ORDERED that the plaintiff's motion for an order of preclusion is granted; and it is further

ORDERED that defendants are precluded from producing any documentary, testamentary, or any other evidence in any form from any party or non-party related to any labor, materials, or time Ed Diaz, or any of his agents, employees, subcontractors, and/or representative, performed at 305 Tice Hill Road, Ghent, New York 12075 at trial or any hearing of this action; and it is further

ORDERED that defendants are precluded from utilizing Ed Diaz, or any of his agents, employees, subcontractors, and/or representative, including Michael Gonzales, Juan Espinoza, Omar Carillo, Bryan Expinoza or any other witnesses at the time of trial or any hearing of this action; and it is further

ORDERED that the defendants' Answer with Counterclaim is stricken.

This constitutes the Decision and Order of the Court. This original Decision and Order is filed by the Court with NYSCEF, which shall not constitute filing and entry under CPLR 2220. Counsel for plaintiff is not relieved of the responsibility of the rule with respect to filing, entry, and Notice of Entry.

Dated: August 10, 2022
Troy, New York
Henry F. Zwack
Acting Supreme Court Justice

Papers Considered:
1. All papers filed in the Office of the Columbia County Clerk, as referenced in NYSCEF Document #1;
2. NYSCEF Documents # 3 through #48. Footnotes

Footnote 1:Typographical error by Court, should read "Answer."