Recitation, as required by CPLR §2219(a), of the papers considered in the review of respondents’ motion and petitioner’s cross-motion. Papers Numbered Notice of Motion and Affidavits Annexed 1 Order to Show Cause and Affidavits Annexed Answering Affidavits (Cross-Motion) 2 Replying Affidavits 3 Exhibits Other (Memorandums of Law) 4, 5 DECISION/ORDER Upon the foregoing papers, the Decision / Order on the motion is as follows: Background Petitioner commenced the instant nuisance holdover proceeding on the grounds that respondents’ behavior substantially interfered with the comfort and safety of the building’s other tenants. Respondents interposed an answer with counterclaims on or about December 3, 2017. Thereafter, respondents moved for and was granted leave to conduct discovery in the form of a Notice for Discovery and Inspection, a deposition of the individual most familiar with the underlying allegations and a subpoena ad testificandum of Peter Zak the sole complaining witness. Respondents subsequently moved for an order striking the petition, entering judgment in their favor on the counterclaims and scheduling an attorney’s fees hearing based on petitioners’ failure to respond to the Notice of Discovery. By decision/order dated May 10, 2019, the Court granted the motion and directed the petitioner to respond to the Notice of Discovery and make its agent available for oral examination. Thereafter, respondents moved for the same relief sought in their previous motion after petitioner failed to comply with the May 10, 2019 order. On May 9, 2020, the Court denied respondents the relief sought but, in so doing, directed petitioner to produce documents responsive to respondents’ discovery notice within twenty-five days of being served with the order with notice of entry. The order further provided that “[u]pon petitioner’s failure to comply, it shall be precluded from introducing any evidence related to the information sought in the Notice.” On May 26, 2020, respondents served a copy of the order with notice of entry and a Demand for a Verified Bill of Particulars on petitioner’s attorney. Respondents now seek leave to renew the motion based on petitioners’ failure to comply with the May 9, 2020 order. In the alternative, respondents seek an order striking the petition and awarding judgment on its counterclaim for attorney’s fees because of petitioner’s failure to respond to their notice of Demand for a Verified Bill of Particulars. Finally, as the prevailing party, respondents seek a hearing to determine the amount of attorney’s fees to which they are entitled. The petitioner in turn cross-moves for leave to conduct discovery upon Zak and for an order deeming the Notice of Discovery and Inspection and Interrogatories annexed to its papers, which were served on Zak in another proceeding, duly served. Discussion Motion A motion to renew must be specifically identified as such and must either be based upon new facts not offered on the prior motion that would change the earlier determination or on a change in the law that would change the prior determination. CPLR 2221 (e)(2). The motion must also contain a reasonable justification for the failure to present such facts in the prior motion. CPLR 2221(e)(3). See, Nichols v. Curtis, 104 AD3d 526 [1st Dept 2013]. Respondents argue that renewal should be granted because petitioner still has not responded to the Notice for Discovery and Inspection. In addition, respondents note that the petitioner has failed to provide them with a bill of particulars despite being served with a demand on May 26, 2020. Respondents also assert that the May 9, 2020, order was conditional and self-executing and became absolute when petitioner failed to timely respond to the discovery notice. Consequently, the petitioner is now prevented from setting forth a prima facie case therefore the proceeding should be dismissed. Petitioner in opposition contends that it cannot be sanctioned pursuant to CPLR §3126 because it did not willfully disobey the court order. Specifically, petitioner asserts that it made a good faith effort to comply with the discovery order but could not do so because its relationship with Zak deteriorated and he is no longer cooperating with them. In addition, it could not locate responsive documents or produce any other witnesses with personal knowledge of the allegations in the petition. Petitioner also maintains that it was not under an obligation to reply to the demand for bill of particulars because respondents did not obtain leave of court to serve it. Finally, petitioner argues that in the unlikely event the Court finds that it is subject to sanctions, the May 9, 2020 order limits respondents’ remedy to preclusion of documentary evidence. As an initial matter, the May 9, 2020 order provided that respondents may renew upon petitioner’s default. Since it is undisputed that petitioner failed to comply with the order, the branch of the motion seeking renewal is granted. With respect to the other relief sought, CPLR §3126 governs discovery penalties against a party who “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed”. The statute provides for several possible nonexclusive penalties and further permits a court to fashion conditional orders “as are just” to allow the party to comply with disclosure within a specified time or be subject to the sanction. A conditional order becomes absolute upon a party’s failure to comply with its provisions. Rampersad v. New York City Dept. of Educ., 30 AD3d 218 [1st Dept 2006]. To obtain relief from the dictates of a conditional order that would preclude a party from submitting evidence in support of a claim or defense, the defaulting party must demonstrate: (1) a reasonable excuse for the failure to produce the requested items and; (2) the existence of a meritorious claim or defense. Fiore v. Galang, 64 NY2d 999 [Ct App 1985]; Gibbs v. St. Barnabas Hosp., 16 NY3d 74 [Ct App 2010]. The latter must be proven with an affidavit of merits from a person competent to attest to the meritorious nature of the claim. Fiore v. Galang, supra. If the defaulting party fails to establish the legal merits of its claim or defense by submission of such affidavit, there is no need to consider its reason for defaulting. Fiore v. Galang, supra. In Fiore, the plaintiffs failed to comply with a conditional order of preclusion requiring them to serve a bill of particulars. The Supreme Court affirmed the Appellate Division’s finding that it was error as a matter of law for the trial court not to have granted defendant hospital’s motion for summary’ judgment in the absence of a sufficient affidavit of merits. In Gibbs, the lower court granted defendant’s motion to enforce the preclusion order only to the extent of ordering plaintiff to pay costs for his 75-day delay. The Appellate Division affirmed but the Court of Appeals reversed finding that plaintiff’s failure to submit an expert affidavit establishing the basis of his malpractice claim was a fatal deficiency and required enforcement of the preclusion order. Here respondents aptly contend that the May 9, 2020 order was a conditional one. As such, the order was self-executing and became absolute when petitioner failed to timely comply with it. Wilson v. Galicia Contr. & Restoration Corp., 10 NY3d 827 [Ct App 2008]. While petitioner seeks relief from the order, it has not demonstrated that there is merit to its nuisance claim. In opposition to the motion, and in support of the cross-motion, petitioner submits an affirmation from its attorney and an affidavit from its agent Brayan Lemus. In the affidavit Lemus avers that petitioner made good faith attempts to comply with the discovery orders but it simply does not have any of the documents sought by respondents nor does it have control over anyone who has personal knowledge of the allegations in the termination notice. Lemus goes on to assert that Zak’s bad faith has put petitioner in an impossible position. While this may explain petitioner’s default, it does not address the merits of petitioner’s claim for possession. In fact, petitioner, by its own admission, is not in a position to assert that there is merit to its claim. The Court has afforded petitioner several opportunities, over the course of two years, to avoid preclusion. However, petitioner failed to take advantage of the opportunities. When it learned that Zak was no longer cooperative, petitioner could have sought a protective order for its anticipated noncompliance. Instead, it took no action until respondent moved to enforce the conditional order. Compare, Peters v. Peters, 146 AD3d 503 [1st Dept 2017] [order striking defendants' answer not warranted because defendants produced 11,000 plus pages of documents and submitted affidavits indicating that, after a thorough search, they did not have any other documents in their possession]. Petitioner is therefore precluded from introducing at trial any “correspondence, notices, and any other documents, writings, recordings and things relating to or concerning the Petitioner’s Notice of Termination” as sought in Notice for Discovery. As to the Demand for a Bill of Particulars, petitioner argues that it is not under an obligation to provide the information sought because respondents did not obtain leave of court. This contention is unavailing. A bill of particulars is not a discovery devise and is available as of right in a summary proceeding where, as here, it is used to further amplifying the pleadings and not as a tactic to delay the proceedings. Tower Properties, Inc. v. Castro, 99 Misc2d 405 [City Ct Rock 1979]. The Demand for a Bill of Particulars, however, was not subject to the conditional order therefore, petitioner’s failure to respond to it cannot be considered in respondents’ request for renewal. With regard to the second branch of the motion, respondents seek to strike the petitioner based on petitioner’s failure to respond to the Demand. Petitioner however alleges that most of the particulars sought is beyond its personal knowledge given the change in management and Zak’s refusal to cooperate. While this explanation does not relieve petitioner of its obligation to provide a bill, it prevents the Court from concluding that its failure to do so was willful and contumacious. Cross-Motion The petitioner argues that it has ample need to conduct discovery on Zak and seeks to do so in the form of document production and interrogatories. Ample need will only be found where: (1) the petitioner has asserted facts to establish a cause of action; (2) there is a need to determine information directly related to the cause of action; (3) the requested disclosure is carefully tailored and is likely to clarify the disputed facts; (4) no prejudice will result by granting disclosure; or (5) the prejudice can be diminished or alleviated by an order of the court. New York University v. Farkas, 468 NYS2d 808 [Civ Ct NY 1983]. Not all of these factors need to be met in order for the court to find ample need. Where the information sought is vital and within the knowledge of the party from whom disclosure is sought ample need has been found. See, e.g. Plaza Operating Partners, Ltd. v. IRM, Inc., 143 Misc2d 22 [Civ Ct NY 1989]. The Court finds that petitioner has not shown ample need for this information. Petitioner seeks information which presumably formed the basis for the underlying proceeding. This information was not respondent’s control and could have been ascertained prior to Zak’s refusal to cooperate. To allow petitioner to attempt to get this information now would amount to fishing expedition. If petitioner wishes, it may subpoena Zak to testify on its behalf. Conclusion Based on the foregoing, the motion is granted to the extent that petitioner will produce the information sought in respondent’s notice of discovery within 20 days of service of a copy of this decision with notice of entry upon it. Upon petitioner’s failure to do so, it will be precluded from introducing any evidence related to the information sought. The cross-motion is denied. This constitutes the decision and order of the Court. Dated: July 31, 2023
