DECISION & ORDER Upon the following papers read on motion sequence 3, to wit:1. Defendant’s Notice of Motion filed June 26, 2018.Upon the following papers read on motion sequence 4, to wit:1. Defendant’s Notice of Motion filed December 19, 2018;2. Defendant’s Reply Affirmation; and3. Defendant’s Notice of Return and Rejection of Plaintiffs Untimely Opposition.Currently before the Court are two motion sequences filed by the Defendant, which seek similar relief. Accordingly, this decision encompasses both motion sequences 3 and 4.At the outset of this Decision and Order, the Court notes that the Plaintiff did not file an opposition to Defendant’s Notice of Motion filed on June 26, 2018 (hereinafter “Motion Sequence 3″). Motion Sequence 3 was adjourned numerous times, many of which at Plaintiffs request, to permit the Plaintiff to put in opposition. The Plaintiff also indicated that the opposition to Motion Sequence 3 would come in the form of Notice of Cross Motion1, but nothing was ever filed. Branch (b) of Defendant’s Notice of Motion filed on December 19, 2018 (hereinafter “Motion Sequence 4″) requests, in part, that Motion Sequence 3 be marked unopposed and fully submitted. Given the fact that Plaintiff has failed to submit any opposition to Motion Sequence 3, the Defendant’s request is granted.Furthermore, the Defendant requests that Motion Sequence 4 also be marked unopposed and fully submitted because the Plaintiff failed to serve her opposition to same pursuant to C.P.L.R. Rule 2214(b). Specifically, the Defendant provided a “Notice of Return and Rejection of Plaintiff’s Untimely Opposition” dated February 1, 2019 wherein it states that Plaintiff did not serve her opposition until 12:50 p.m. on February 1, 2019 (the return date of the motion) and that the opposition should have been served by January 25, 2019 pursuant to C.P.L.R. Rule 2214(b). This Court agrees with the Plaintiff. Therefore, the Plaintiff’s Opposition shall not be considered, and Motion Sequence 4 is deemed unopposed and fully submitted.DISCOVERYBranch (a) of both of Defendant’s Notice of Motion (Motion Sequences 3 and 4) seeks, inter alia, Orders pursuant to CPLR §3126 (1) and (2). Specifically, Defendant requests that this Court “[deem] the issues sought to be discovered in the Defendant’s Demands for and Interrogatories and Deposition [be] resolved in accordance with Defendant’s claims at the hearing. See C.P.L.R. §3126(1); see also Branch of (a) of Motion Sequence 3. Defendant further requests an Order “precluding Plaintiff from presenting any testimony, witnesses or evidence” at the hearing. See C.P.L.R. §3126(2); see also Branch of (a) of motion sequence 4.This Court is empowered pursuant to CPLR §3126 to impose certain orders and/or penalties when a party “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds out to have been disclosed”. By way of example, this Court may resolve all issues to which the information is relevant in favor of the moving party and/or preclude the disobedient party from producing certain evidence, including in the form of testimony or witnesses at trial. See CPLR §3126 (1) and (2).22 N.Y.C.R.R. §202.7(a) requires “an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve…” the issues raised in a motion relating to disclosure, be served and filed. Additionally, 22 N.Y.C.R.R. §202.7(c) prescribes the details that need to be included in the affirmation of good faith. Specifically, the affirmation of good faith “shall indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with (opposing counsel] was held.” 22 N.Y.C.R.R. §202.7(c).In addition to the affirmation of good faith requirement, the Second Department has declined to grant relief to a movant under CPLR §3126 if he/she failed to first move to compel under CPLR §3124. See e.g. Diel v. Rosenfeld, 12 A.D.3d 558 (2d Dept. 2004); and Charter One Bank, FSB v. Houston, 300 A.D.2d 429 (2d Dept. 2002).Contained in the Defendant’s Attorney’s Affirmation in Support of Defendant’s Notice of Motion filed June 26, 2018 (Motion Sequence 3) contains the detailed good faith efforts made to resolve the disclosure issues together with the letters sent to Plaintiff’s counsel. Specifically, the Defendant made the following good faith attempts to resolve Plaintiff’s noncompliance with Defendant’s outstanding discovery demands and interrogatories as follows:Letter sent to Plaintiff’s counsel on February 5, 2018, together with additional copies of Defendant’s discovery demands. The letter also contains an affidavit of service that it was sent to Plaintiff’s attorney by regular mail. See Exhibit E to Motion Sequence 3; andSecond letter sent to Plaintiff’s counsel on May 9, 2018 memorializing the first good faith letter sent. The letter also contains an affidavit of service that it was sent to Plaintiff’s attorney by regular mail. See Exhibit F to Motion Sequence 3.Motion Sequence 4 is also accompanied by an Affirmation of Good Faith dated December 11, 2018. The Affirmation of Good Faith and the Attorney Affirmation in support of Motion Sequence 4 details the continuous good faith efforts made by Defendant to resolve Plaintiff’s noncompliance as follows:First good faith letter sent to Plaintiff’s counsel on February 5, 2018, together with an affidavit of service. See Exhibit G to Motion Sequence 4;Second good faith letter sent to Plaintiff’s counsel on May 9, 2018, together with an affidavit of service. See Exhibit H to Motion Sequence 4;Third good faith letter sent to Plaintiff’s counsel on July 24, 2018, together with the facsimile confirmation sheet. See Exhibit 1 to Motion Sequence 4;Good faith email sent to Plaintiff’s counsel on August 30, 2018, See Exhibit J to Motion Sequence 4;Good faith email sent to Plaintiff’s counsel on September 4, 2018 with regard to the Plaintiffs incomplete responses to Defendant’s Interrogatories. See Exhibit L to Motion Sequence 4; andFourth good faith letter sent to Plaintiffs counsel dated October 17, 2018. See Exhibit Q to Motion Sequence 4,Accordingly, this Court finds that Defendant has satisfied the good faith requirements prior to making Motion Sequences 3 and 4.The Defendant has also sought to compel discovery pursuant to CPLR §3124 in branch (b) of Motion Sequence 3.CPLR §3124 permits a party seeking disclosure to file an application to compel compliance or a response if a person fails to comply with any, inter alia, notice or demand under Article 31. As with CPLR §3126, an affirmation of good faith is also required when seeking relief under CPLR §3124. See 22 N.Y.C.R.R. §§202.7(a) and (c); See also Chervin v. Macura, 28 A.D.3d 600, 602 (2d Dept. 2006). As detailed above, Defendant satisfied this requirement as detailed in Motion Sequence 3 and letters annexed thereto as Exhibits E and F.Furthermore, as the Defendant correctly notes, no less than three court conferences were held on the record with respect to Plaintiff’s noncompliance with Defendant’s discovery demands. Defendant annexed the complete transcripts from the conferences held on September 13, 2018 and September 28, 2018. See Exhibits N and O, respectively, annexed to Motion Sequence 4. Importantly, the Court notes that Defendant’s application to compel discovery was resolved to the extent that a discovery scheduled was placed on the record on at the conference held on July 12, 2018.Accordingly, the Court finds that Defendant has satisfied the requirement to first move to compel under CPLR §3124. See e.g. Diel v. Rosenfeld, 12 A.D.3d 558 (2d Dept. 2004); and Charter One Bank, FSB v. Houston, 300 A.D.2d 429 (2d Dept. 2002).This Court has “‘broad discretion in determining the nature and degree of the penalty to be imposed where a party has refused to comply with discovery demands’”. Inc. Vill. Of Cove Neck V. Petrara, 47 A.D.3d 885, 886 (2d Dept. 2008) (internal citations omitted). “[T]o invoke the drastic remedy of preclusion, the court must determine that the offending party’s lack of cooperation with disclosure was willful, deliberate and contumacious.” Maillard v. Maillard, 243 A.D. 3d 448, 449 (2d Dept. 1997). “‘The general rule is that the court will impose a sanction commensurate with the particular disobedience it is designed to punish and go no further than that’”, Chowdhury v. Hudson Valley Limousine Serv., LLC, 162 A.D.3d 845, 846 (2d Dept. 2018).Here, this Court finds that Plaintiff’s lack of cooperation with disclosure was willful, deliberate and contumacious. This is evidenced by, inter alia, the six attempts made by the defendant to secure Plaintiff’s compliance. Furthermore, even after Defendant advised Plaintiff that her response to Defendant’s Interrogatories were incomplete and failed to comply with C.P.L.R. Rule 3133, she still did not remedy same.2 Additionally, pursuant to an affidavit dated June 20, 2018 from a paralegal at Defendant’s counsel’s firm, Plaintiff refused to submit to a deposition without an Order from the court directing her to appear.As stated in Defendant’s moving papers (see e.g. Affirm. 12/11/18 53), they have been prejudiced by Plaintiff’s lack of diligence and delay in complying with Defendant’s discovery demands. McIntosh v. City of New York, 275 A.D.2d 307, 307-308 (2d Dept. 2000), Additionally, the Plaintiff has failed to provide a reasonable excuse for her failure to comply with Defendant’s discovery demands. Lotardo v. Lotardo, 31 A.D.3d 504, 505 (2d Dept. 2006). The Plaintiff’s conduct frustrates the purpose of the C.P.L.R. and an imposition of sanctions is warranted. See id. (internal citations omitted).Accordingly, the Court finds the appropriate sanction commensurate with Plaintiff’s disobedience is: the Plaintiff is precluded from presenting testimony, witnesses or evidence on the issue of Plaintiff’s income, assets and debts. See e.g. Chowdhury, 162 A.D.3d at 846.MONETARY SANCTIONSMotion Sequence 3 seeks $5,000.00 as and for counsel fees and a further sum of $5,000.00 as and for sanctions. Motion Sequence 4 seeks $7,262.50 as and for counsel fees and a further sum of $5,000.00 as and for sanctions.22 N.Y.C.R.R. §130-1.1 states, in pertinent part:“(a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct…(c) For purposes of this Part, conduct is frivolous if:(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or(3) it asserts material factual statements that are false.”The Court also notes that monetary sanctions are also permitted under C.P.L.R. §3126 in addition to the sanction of preclusion. (Patrick M. Connors, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR C3126:8 [2018]).Here, the Court finds that Plaintiff’s refusal to comply with two sets of discovery demands, interrogatories and her initial failure to appear for a deposition is frivolous conduct as defined by 22 N.Y.C.R.R. §130-1.1 and has served no legitimate purpose except to delay or prolong the resolution of this case. Moreover, the Court finds that a monetary sanction in addition to the preclusion sanction detailed supra is appropriate.Therefore, the Plaintiff is sanctioned in the amount of $7,500.00 which shall be payable in the form of counsel fees to the directly to the Defendant’s counsel’s office within fifteen (15) days from the date of this Order. Furthermore, if the Plaintiff is not in compliance, upon the submission of an Affirmation of Non-Payment, the Clerk of the County of Suffolk is hereby directed to enter and docket a money judgment in favor of Zimmerman Law, P.C. and against the Plaintiff Jennifer Trost for such amount and Zimmerman Law, P.C. shall have execution therefor.Accordingly, it is herebyORDERED that the Plaintiff is precluded from presenting testimony, witnesses or evidence on the issue of Plaintiffs income, assets and debts during the trial of the post judgment matters (Motion Sequences 1 and 2); and it is furtherORDERED that the Plaintiff is hereby sanctioned in the amount of $7,500.00, which shall be payable in form of counsel fees by Plaintiff directly to the Defendant’s counsel, Zimmerman Law, P.C. with offices located at 315 Walt Whitman Road, Suite 215, Huntington Station, New York 11747 within fifteen (15) days from the date of this Order; and it is furtherORDERED that if the Plaintiff is not in compliance with the counsel fee payment, upon the submission of an Affirmation of Non-Payment, the Clerk of the County of Suffolk is hereby directed to enter and docket a money judgment in favor of Zimmerman Law, P.C. and against the Plaintiff, Jennifer Trost, for such amount and Zimmerman Law, P.C. shall have execution therefor; and it is furtherORDERED that all relief requested not specifically addressed herein is denied.The foregoing constitutes the Decision and Order of this Court.Dated: February 19, 2019Central Islip, New York
