This discovery motion arises out of a contract action brought by plaintiff NorthE Group Inc., a construction contractor, against defendant Consolidated Edison Company of New York Inc. NorthE acted as a contractor on a project for nonparty City of New York. They billed Con Ed under City regulations for delay costs assertedly incurred by NorthE while working on the project, due to the need to work around Con Ed infrastructure in and around the project site. NorthE then brought this action against Con Ed, claiming that Con Ed had failed to pay up on some of the invoices that NorthE had sent to Con Ed — most importantly, on the final invoice, No.17.1 Con Ed served a number of document requests on NorthE in October 2017, seeking information regarding the source of (and basis for) the costs reflected on invoice #17. NorthE failed to respond fully to these requests. In February 2019, Con Ed sent NorthE a detailed deficiency letter. Notwithstanding multiple further status conferences — and conference orders — NorthE still did not address the deficiencies identified in Con Ed’s February 2019 letter. In January 2020 — nearly a month after the last deadline missed by NorthE — Con Ed moved to strike NorthE’s complaint as a sanction under CPLR 3126 for repeated failure to comply with this court’s discovery orders. Shortly before NorthE’s opposition to the motion was due, NorthE served a further supplemental document production on Con Ed. NorthE then argued in its opposition papers that the motion to strike should be denied in light of that production, asking this court, in effect, to treat the motion as having been rendered academic. DISCUSSION As an initial matter, NorthE plainly failed over an extended period of time to comply with several discovery orders entered by this court directing NorthE to respond fully to Con Ed’s document requests (and to address the deficiencies identified in Con Ed’s February 2019 letter). NorthE maintains, both on this motion and at a December 2019 status conference, that it is not attempting willfully to evade having to turn over documents, but rather as a small contractor is struggling to comply with its discovery obligations in this case while operating its business and also contesting other contract-related disputes. But NorthE does not dispute that as of the filing of the present motion to strike, it had repeatedly failed to meet discovery deadlines to which it had agreed and to supplement document responses that Con Ed had identified as deficient. Instead, NorthE argues that it adequately remedied the deficiencies in its responses through the further supplemental document response that NorthE served on Con Ed during the pendency of this motion to strike. Upon reviewing the materials included in the production, this court disagrees. To be sure, many of the documents served by NorthE are responsive to Con Ed’s February 2019 deficiency letter. But this court concludes that significant gaps persist: for example, a final project schedule accounting for all delays encountered by NorthE, documents explaining the basis for the per-day rate for NorthE’s project superintendent and for management costs that appears on invoice #17, and documents fully explaining the basis for the 211-day delay period claimed on invoice #17. This court declines at this time, however, to strike NorthE’s complaint (or NorthE’s claims relating to invoice #17). New York has a strong preference for deciding actions on their merits. This court is not persuaded that NorthE’s failure to comply with its discovery obligations is sufficiently willful and evasive to merit the extreme sanction of striking a pleading. That is particularly true since it is NorthE, as the plaintiff, that ultimately will have to come forward with sufficient evidence in support of its claims to survive a dispositive motion — and since this court would look with disfavor on any attempt by NorthE at that stage to rely on documents that it had in its possession but failed to turn over to Con Ed. At the same time, Con Ed is correct that NorthE’s failure to comply with its discovery obligations — even during the pendency of a motion to strike — is long-lasting and persistent; and that the documents at issue go to the heart of NorthE’s most significant claim in the action. This court therefore holds that NorthE should be given a final opportunity to provide the documents sought by Con Ed, or a suitably detailed affidavit of diligent search explaining that no further responsive documents are in NorthE’s possession. Absent good cause, a failure to provide either the documents or the affidavit will warrant striking of NorthE’s claims relating to invoice #17. Accordingly, it is ORDERED that Con Ed’s motion under CPLR 3126 to strike NorthE’s complaint (or portions thereof) is granted only to the extent that NorthE shall, within 60 days of service of a copy of this order with notice of entry, further supplement its responses to Con Ed’s document requests dated October 25, 2017, to remedy the deficiencies identified in Con Ed’s letter dated February 5, 2019; and it is further ORDERED that, to the extent NorthE has produced all responsive documents in its possession with respect to some (or all) of the outstanding document requests, NorthE shall supply a detailed affidavit of diligent search explaining (i) how it looked for responsive documents, and (ii) whether it previously had additional responsive documents in its possession, and if so, what happened to those documents; and it is further ORDERED that, absent good cause shown, if NorthE fails within 60 days of service of notice of entry to serve a supplemental document response and/or affidavit of diligent search on Con Ed, NorthE’s claims relating to invoice #17 shall be stricken on the request of Con Ed; and it is further ORDERED that any such request to strike by Con Ed shall be made by email to [email protected] and copied to counsel for NorthE; and that the request to strike shall also be e-filed on NYSCEF, either immediately (if filing in nonessential matters is then permitted by order of Chief Administrative Judge Lawrence Marks), or as soon as filing is again permitted; and that any response by NorthE shall be similarly e-mailed and e-filed; and it is further ORDERED that NorthE shall pay Con Ed’s reasonable attorney fees incurred in (i) preparing its papers on this motion, and (ii) appearing for the status conference held on December 18, 2019, with the amount of such fees to be determined at the close of the case; and it is further ORDERED that counsel for Con Ed shall serve notice of entry, and may do so by mail or by overnight delivery service; and it is further ORDERED that counsel Con Ed shall e-file a copy of its notice of entry (and the accompanying affidavit(s) of service) on NYSCEF as soon as filing in pending nonessential matters is again permitted by order of Chief Administrative Judge Marks. Dated: April 28, 2020
