The following e-filed documents, listed by NYSCEF document number (Motion 006) 156, 157, 158, 159, 160, 161, 162, 163, 173, 174, 179, 180, 181, 182, 183, 184 were read on this motion to/for STRIKE PLEADINGS. The following e-filed documents, listed by NYSCEF document number (Motion 007) 165, 166, 167, 168, 169, 170, 171, 172, 175, 178, 185, 186, 187 were read on this motion to/for DISMISS. ADDITIONAL CASES William Moses Co. Inc. Plaintiff v. Robert L. Teitelbaum, Inc., National Mechanical Services, Inc., Advanced Maintenance, Inc. d/b/a Advanced Chimney, Inc., Defendant; 595293/2018 DECISION ORDER ON MOTION Upon the foregoing papers, review of the record, and oral argument held on November 29, 2022, the Court issues the following combined Decision and Order on motion sequences 006 and 007. Plaintiff alleges he suffered carbon monoxide poisoning in his apartment due to negligent maintenance of the boiler. As relevant here, following the transfer of this matter from Justice Chan, a conference was held in this Part and the parties were directed, inter alia, to serve and respond to post-deposition demands within 20 days. Plaintiff served post-deposition demands the day following completion of defendant Moses’ deposition (see September 29, 2021 demand).1 The Moses defendants did not respond to the demand. Five months later, plaintiff served a good faith letter, dated February 23, 2022, seeking responses to its post-deposition demand. The Moses defendants again did not respond. Plaintiff now seeks to strike the Moses defendants pleadings for failure to respond to its demand, and failure to comply with the Court’s Conference Order. The Court’s conference order stated, in relevant part, “Failure to respond to a timely post-deposition demand shall result in sanctions, including but not limited to the striking of pleadings, in the Court’s discretion upon further application.” Additionally, the Court’s conference order directed that an inspection of the building’s common areas occur, including the visible portions of the ventilation system. During this court-ordered inspection, counsel for Moses defendants refused inspection of the basement or roof. Counsel contacted chambers seeking a ruling regarding inspection of these premises but were instructed to call back later that afternoon, as the Court was engaged with other matters. In the interim, counsel for Moses refused continued inspection of the building and removed all counsel, agents, and expert witnesses from the building. CPLR §3101(a) directs that there “shall be full disclosure of all matter material and necessary to the prosecution or defense of an action, regardless of the burden of proof” (Forman v. Henkin, 30 NY3d 656, 661 [2018]). The test utilized is “one of usefulness and reason” (id.). CPLR §3126 subsection three provides that the Court may strike a pleading when it finds, inter alia, that a party has refused to obey an order for disclosure or willfully fails to disclose information that ought to have been disclosed. This remedy is drastic and should only be imposed when the movant has “clearly shown that its opponent’s nondisclosure was willful, contumacious or due to bad faith” (Commerce & Indus. Ins. Co. v. Lib-Com Ltd., 266 AD2d 142 [1st Dept 1999]). A pattern of default, lateness, and failure to comply with court orders can give rise to an inference of willful and contumacious conduct (see Merchants T & F, Inc. v. Kase & Druker, 19 AD3d 134 [1st Dept 2005]); see also Shah v. Oral Cancer Prevention Intl., Inc., 138 AD3d 722 [2d Dept 2016]). “A party that permits discovery to ‘trickl[e] in [with a] cavalier attitude should not escape adverse consequence’” (Henderson-Jones v. City of New York, 87 AD3d 498, 504 [1st Dept 2011] quoting Figdor v. City of New York, 33 AD3d 560, 561 [1st Dept 2006]). As the Court of Appeals has repeatedly underscored, “our court system is dependent on all parties engaged in litigation abiding by the rules of proper practice. The failure to comply with deadlines not only impairs the efficient functioning of the courts and adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conducts of members of the bar, often to the detriment of the litigants they represent. Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice law and Rules and a culture in which cases can linger for years without resolution” (Gibbs v. St. Barnabas Hosp., 16 NY3d 74 [2010]). Compliance requires a timely response and good faith effort to provide a meaningful response (Kihl v. Pfeffer, 94 NY2d 118, 123 [1999]). Disregard of discovery deadlines will not be tolerated (Andrea v. Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C, 5 NY3d 514, 521 [2005]; see also Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 208 [2d Dept 2012]). This is a 2016 matter regarding relatively straightforward issues of claimed carbon monoxide poisoning. An inspection of the building, and ventilation systems, is clearly relevant and necessary to plaintiff’s claim that the building’s boiler did not vent gasses properly, leading to his gaseous poisoning. As such, the Court ordered that inspection of the building’s common areas take place, including the ventilation system. Nevertheless, the Moses defendants and their counsel failed to comply with several Court orders regarding this basic discovery, and such failure to comply has resulted in this entirely avoidable motion practice. Curiously, while the Moses defendants take the position that inspection of the basement is irrelevant, they nevertheless concede that inspection of the boiler at issue is necessary and is located in the basement. Furthermore, the Moses defendants proffer no reasonable excuse for ignoring this Court’s order nor do they offer a reasonable excuse for responding to plaintiff’s post-deposition demand only after plaintiff brought the instant motion related to same, and nearly six-months after the court-imposed deadline for same. To the extent that the Moses defendants contend plaintiff’s postdeposition demands are overbroad or irrelevant, notably absent from the record is any motion by Moses seeking a protective order or other relief related to overbroad demands. In any event, the Uniform Rules do not permit a party to unilaterally declare a demand overbroad and ignore or belatedly respond to same. To the extent that Moses claims it responded to plaintiff’s demand on April 11, 2022, that claim is flatly contradicted by the record which specifies the response was not filed until April 18, 2022, after plaintiff brought the instant motion seeking sanctions for failure to serve same (see NYSCEF Doc. No. 164). Furthermore, the response itself is dated April 13, 2022, after plaintiff filed the instant motion (id.). The Court finds the above pattern of noncompliance by the Moses defendants willful and designed to frustrate the resolution of this matter. It is beyond cavil that the Court issued a valid order requiring responses to postdeposition demands within 20 days and that the Moses defendants simply ignored same. Furthermore, it is likewise inarguable that the Court issued a valid order requiring an inspection of the building’s common areas and ventilation system, which the Moses defendants’ counsel, the Law Office of Margaret G. Klein & Associates via Patrick J. Corbett, Esq., chose to unilaterally modify to their liking, refusing inspection to, inter alia, the basement other than the boiler room, and the roof, in violation of the Court’s order. The Court’s resources are limited and the repeated non-compliance, partial compliance, or late compliance by the Moses defendants has needlessly squandered same. Notwithstanding, rather than strike defendants’ answer at this time, and given that discovery related to the building’s common areas including, but not limited to, the ventilation system, boiler room, basement, stairwells, hallways, roof, and all other locations containing boiler and ventilation equipment or connections thereto, remains necessary to the prosecution and defense of the claims against Sprague Energy and Advanced Chimney L.P., the Court provides a final opportunity to complete the site inspection under the supervision of a Court Monitor Referee at the Moses defendants’ sole expense. The Court further reserves decision on those portions of the motions seeking to strike the Moses defendants’ answer. Moses defendants’ failure to provide unfettered access to the building’s common areas, ventilation system, boiler room, basement, stairwells, hallways, roof, and all other locations containing boiler and ventilation equipment or connections thereto to plaintiff and thirdparty defendants, and as supervised by the Court Monitor Referee, shall result in the striking of defendants’ answer and may result in additional sanctions, including but not limited to findings of contempt, upon further application. Unfettered access to the aforementioned areas shall be provided to plaintiff, Sprague Energy, and Advanced Chimney L.P., and their agents/experts/etc., for a site inspection to be completed no later than February 10, 2023, subject to the availability of the Court Monitor Referee. To the extent that movants seek to recover legal fees associated with the instant avoidable motion practice, and expert fees following further site inspection, those portions of the motions are denied without prejudice to renew upon further application following the completion of the site inspection above. To the extent that movants seek to compel discovery from Moses defendants regarding video camera recordings, apartment inspection records — including but not limited to carbon monoxide detectors, and repair records of the boiler, same is granted. While it is true that post-accident repairs are generally not admissible to demonstrate liability, that rule is premised upon public policy encouraging repair work to avoid future injury from the same defect or problem. Here, however, repairs and inspections after the date of the alleged occurrence may well reveal, or at least provide some insight, into what the initial problem was, if any, with the boiler. Indeed, it is fair to presume the owner of a boiler would not permit it to be operated with the knowledge same was defective, and that problems or defects within such machinery are revealed only after an unexpected event. Thus, this discovery is not the type prohibited by the post-accident repair concerns of that rule, which seeks to avoid future injury. Finally, to the extent that third-party National Mechanical Services seeks, by separate motion (mot. seq. 007), to dismiss the third-party complaint, such relief has already been addressed by the instant decision and order. Accordingly, it is ORDERED that the Hon. Charles J. Thomas ([email protected]) is appointed as a Court Monitor Referee to supervise inspection of the premises as above noted; and it is further ORDERED that the parties shall contact the Court Monitor Referee appointed above no later than January 6, 2023, and submit to the Referee an Information Sheet (accessible at the “References” link on the court’s website) containing all the information called for therein and provide their availability for a site inspection; and it is further ORDERED that upon receipt of the information sheet above, and as soon as practical thereafter, the Referee shall advise counsel for the parties of the date for the site inspection; and it is further ORDERED that defendants William Moses Co. Inc, Wam Equity Partners, L.P., and Van Dorn Holdings, LLC shall provide access to the residential unit previously occupied by plaintiff as well as the subject building’s common areas, ventilation system, boiler room, basement, stairwells, hallways, roof, and all other locations containing boiler and ventilation equipment or connections thereto or contiguous non-residential areas for further site inspection, as may be requested by experts and approved by the Court Monitor Referee, consistent with this Decision and Order; and it is further ORDERED that the parties shall appear for the site inspection, including with all expert witnesses, and shall be ready to proceed with the site inspection, as directed by the Referee, subject only to any adjournment that may be authorized by the Referee; and it is further ORDERED that all parties shall abide by the Court Monitor Referee’s directives as if the Referee were the Court; and it is further ORDERED that the Court Monitor Referee shall file a brief letter to NYSCEF, with courtesy copy to chambers ([email protected]), outlining any noncompliance at the site inspection no later than February 24, 2023; and it is further ORDERED that a compliance conference is scheduled before Justice Nervo on February 28, 2023, at 11:00am via Microsoft Teams; and it is further ORDERED that the costs associated with the Referee, appointed above, shall be borne solely by defendants William Moses Co. Inc, Wam Equity Partners, L.P., and Van Dorn Holdings, LLC; and it is further ORDERED that William Moses Co. Inc, Wam Equity Partners, L.P., and Van Dorn Holdings, LLC shall provide movants with all video footage of the date of the alleged occurrence, the apartment inspection records — including but not limited to those related to carbon monoxide detectors, and a copy of the contract between it and National Mechanical Services within 10 days of this decision and order. To the extent that William Moses Co. Inc, Wam Equity Partners, L.P., and Van Dorn Holdings, LLC cannot locate, do not maintain, or otherwise cannot furnish same, they shall, within 10 days of this decision and order, provide a Jackson affidavit including the efforts made to provide this discovery and the reasons same cannot be provided. The failure to timely provide the aforementioned discovery, or a Jackson affidavit, shall result in sanctions, including but not limited to striking the pleadings of William Moses Co. Inc, Wam Equity Partners, L.P., and Van Dorn Holdings, LLC; and it is further ORDERED that any further discovery dispute/application/motion arising from or following the site inspection shall be referred to the Court Monitor Referee above to hear and report on same as a Discovery Referee at the parties’ shared expense following the filing of such application; and it is further ORDERED that all parties are directed to share in the costs associated with ordering a copy of the Court’s November 29, 2022, stenographic transcript (Senior Court Reporter Bonnie Piccirillo, [email protected]) and the parties shall file same to NYSCEF within 14 days. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: December 21, 2022
