Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motionPapers/NumberedNotice of Motion, Affirmation and Affidavit 1Order to Show Cause and Affidavits Annexed 2Opposition/Replying Affidavit and Affirmation 3Procedural History On November 3, 2017, the Court granted respondent leave to take the oral examination before trial of Maria Adorno, a nonparty witness and employee of the petitioner. It was not disputed that the testimony of said witness may be material to respondent’s defense in this holdover case.After the November 3, 2017 Decision/Order, respondent sought information regarding the address of Maria Adorno to schedule an examination before trial. The information was not provided to the respondent. Respondent did not serve a Civil Practice Laws and Rules §3107 (CPLR) notice upon the petitioner.On April 5, 2018, respondent moved by motion for an order seeking to strike petitioner’s pleadings pursuant to CPLR 3126. The case was adjourned several times for motion practice and on consent of both parties.On October 17, 2018, respondent argued that petitioner failed to produce the witness for examination before trial. Respondent shows that the efforts to secure the address of the witness were frustrated by the petitioner. It is undisputed that petitioner did not disclose the address of the witness as was requested by respondent. Petitioner claimed that Maria Adorno was no longer an employee of petitioner and that privacy concerns prevent it from producing her address.This Court issued an Interim Order scheduling a hearing on December 5, 2018. The Interim Order stated in pertinent part that “Petitioner is directed to appear and provide testimony from a person having knowledge and information regarding the employment status of the witness sought to be examined by respondent, to wit: Maria Adorno.”The hearing was adjourned several times at the request of the parties and marked final for the parties to appear with relevant witnesses. The hearing date was scheduled for January 20, 2019 at 2:15 PM.On January 20, 2019, petitioner did not present testimony from a person with knowledge regarding the witness sought to be deposed. Petitioner’s counsel presented information about Maria Adorno’s employment status and the information presented constituted hearsay. Petitioner’s non-compliance with the clear order of the court may be sanctionable.DiscussionCPLR 3126 allows for striking of pleadings and/or defenses if a party “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed.” Appellate Division, 1st Department, held that drastic remedy of striking party’s pleadings is justified if moving party has clearly shown that its opponent’s nondisclosure was willful, contumacious, or in bad faith; it is not a sanction to be routinely imposed whenever [a] party fails to comply with any item of discovery. Commerce & Indus. Ins. Co. v. Lib-Com, Ltd., 266 AD2d 142, (NY App. Div. 1st Dep’t 1999).The November 3, 2017 Decision/Order granted leave to conduct an examination before trial of Maria Adorno. Respondent attempted to find out the address of Maria Adorno. Petitioner did not provide such information despite the efforts detailed in the moving papers. Respondent, however, did not establish that petitioner’s conduct was “willful, contumacious, or in bad faith.” Petitioner claims that Maria Adorno was not employed by petitioner at the time her information was sought. In addition, petitioner refers to the Freedom of Information Law (FOIL) Appeal decision dated May 15, 2018, which states, in part, that certain records are exempt from mandatory disclosure “if disclosed could constitute and unwarranted invasion of personal privacy.”Affirmation in Opposition Exhibit B.Respondent’s Reply Affirmation argues that pursuant to Article 31 of the CPLR, that a nonparty witness which is in some significant way controlled by the party can be put in the same category as a party. CPLR 3126 makes the party responsible for the nonparty’s conduct whenever the latter is “otherwise under a party’s control.” Reply Affirmation §6, 7, 10.At this time, it is unclear whether Maria Adorno was employed by petitioner at the time the disclosure was sought. While petitioner did not bring a person with personal knowledge regarding Maria Adorno’s employment status in direct violation of this Court’s order, respondent did not sufficiently support its contention that Maria Adorno was “under a party’s control” at the time in question.CPLR 3107 states that “a party desiring to take the deposition of any person upon oral examination shall give to each party twenty days’ notice, unless the court orders otherwise. The notice shall be in writing, stating the time and place for taking the deposition, the name and address of each person to be examined, if known, and, if any name is not known, a general description sufficient to identify him or the particular class or group to which he belongs.”The November 3, 2017 Decision/Order gave leave to conduct the examination before trial of Maria Adorno. The Order did not direct the petitioner to provide a witness at a specific place or time. Petitioner argues that it did not refuse to comply with the Order because they were not directed to do any specific action. Respondent did not move to produce the witness pursuant to CPRL 3107. Such notice could have been served on petitioner’s counsel to produce the nonparty witness that was allegedly “under a party’s control.”The request to strike petitioner’s pleadings, or parts thereof, for failure to produce a witness for an examination before trial is premature as neither the witness nor the petitioner were given a notice to appear at a specific date for an examination before trial. Respondent’s motion papers do not specify any case law or other authority that would allow for striking of pleadings based on similar facts or circumstances.Conclusion and OrderIt is Ordered that respondent’s motion is denied without prejudice as stated above.It is Ordered that petitioner is hereby directed to produce the witness, Maria Adomo, for an examination before trial as per the Decision/Order of November 3, 2017. The examination before trial is to take place and conclude on or before March 31, 2019. The location of the examination before trial shall be selected by the parties. Failure to produce the witness on or before March 30, 2019, may be the basis for the imposition of appropriate remedies pursuant to CPLR 3126.It is Ordered that the parties are to appear on April 15, 2019 at 9:30 AM in Part A, Courtroom B129 for settlement or trial.This Decision and Order is being mailed to both sides.This constitutes the Decision and Order of the Court.So orderedDated: February 5, 2019Bronx, New York
