Opinion
2019–07475 Index No. 515600/15
03-09-2022
Romel GUTIERREZ, et al., appellants, v. GOOD BAR, LLC, et al., respondents, et al., defendants.
James G. Dibbini & Associates, P.C., Yonkers, NY, for appellants. Daniel J. Niamehr, New York, NY, for respondents.
James G. Dibbini & Associates, P.C., Yonkers, NY, for appellants.
Daniel J. Niamehr, New York, NY, for respondents.
MARK C. DILLON, J.P., VALERIE BRATHWAITE NELSON, REINALDO E. RIVERA, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Kings County (Lizette Colon, J.), dated April 8, 2019. The order granted the motion of the defendants Good Bar, LLC, and Gina O'Keefe pursuant to CPLR 3126 to preclude the plaintiffs from offering any evidence at trial, and denied the plaintiffs’ cross motion to strike those defendants’ answer and to preclude those defendants from offering any evidence at trial.
ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof granting the motion of the defendants Good Bar, LLC, and Gina O'Keefe pursuant to CPLR 3126 to preclude the plaintiffs from offering any evidence at trial, and substituting therefor a provision denying that motion; as so modified, the order is affirmed, without costs or disbursements.
The plaintiffs commenced this action, inter alia, to recover damages for breach of contract and unjust enrichment. In an order dated February 21, 2019, the Supreme Court directed the plaintiffs to respond to certain discovery demands within 15 days or be precluded from offering evidence at trial. The plaintiffs served responses within 15 days, but objected to some of the demands.
The defendants Good Bar, LLC, and Gina O'Keefe (hereinafter together the defendants) then moved pursuant to CPLR 3126 to preclude the plaintiffs from offering evidence at trial, based on the plaintiffs’ failure to provide responses to the discovery demands as required by the February 21, 2019 conditional order. The plaintiffs cross-moved to strike the defendants’ answer and to preclude the defendants from offering any evidence at trial, based on the defendants’ purported failure to appear for depositions. The Supreme Court granted the defendants’ motion and denied the plaintiffs’ cross motion. The plaintiffs appeal.
The Supreme Court improvidently exercised its discretion in granting the defendants’ motion to preclude the plaintiffs from offering evidence at trial. "A conditional order of preclusion requires a party to provide certain discovery by a date certain, or face the sanctions specified in the order" ( Naiman v. Fair Trade Acquisition Corp., 152 A.D.3d 779, 780, 59 N.Y.S.3d 414 ; see McIntosh v. New York City Partnership Dev. Fund Co., Inc., 165 A.D.3d 1251, 1252, 87 N.Y.S.3d 637 ; Hughes v. Brooklyn Skating, LLC, 120 A.D.3d 758, 758–759, 991 N.Y.S.2d 326 ). "If the party fails to produce the discovery by the specified date, the conditional order becomes absolute" ( Naiman v. Fair Trade Acquisition Corp., 152 A.D.3d at 780, 59 N.Y.S.3d 414 ; see Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 82–83, 917 N.Y.S.2d 68, 942 N.E.2d 277 ; McIntosh v. New York City Partnership Dev. Fund Co., Inc., 165 A.D.3d at 1252, 87 N.Y.S.3d 637 ; Hughes v. Brooklyn Skating, LLC, 120 A.D.3d at 759, 991 N.Y.S.2d 326 ). "To be relieved of the adverse impact of the conditional order of preclusion, a party is required to demonstrate a reasonable excuse for the failure to comply with the order and the existence of a potentially meritorious [cause of action]" ( Naiman v. Fair Trade Acquisition Corp., 152 A.D.3d at 780, 59 N.Y.S.3d 414 ; see Gibbs v. St. Barnabas Hosp., 16 N.Y.3d at 80, 917 N.Y.S.2d 68, 942 N.E.2d 277 ; McIntosh v. New York City Partnership Dev. Fund Co., Inc., 165 A.D.3d at 1252, 87 N.Y.S.3d 637 ).
Here, the plaintiffs set forth a reasonable excuse for their failure to respond to certain of the subject discovery demands based on, inter alia, their objections that certain tax returns and tax documents sought were privileged (see Levine v. City Med. Assocs., PC, 108 A.D.3d 746, 747, 970 N.Y.S.2d 257 ; Latture v. Smith, 304 A.D.2d 534, 536, 758 N.Y.S.2d 135 ), their objections of lack of materiality (see generally Leibowitz v. Babad, 175 A.D.3d 639, 106 N.Y.S.3d 380 ; Accent Collections, Inc. v. Cappelli Enters., Inc., 84 A.D.3d 1283, 1283–1284, 924 N.Y.S.2d 545 ), and their inability to obtain certain of the sought-after information (see Tanriverdi v. United Skates of Am., Inc., 164 A.D.3d 858, 859–860, 83 N.Y.S.3d 542 ).
Further, the plaintiffs demonstrated the existence of potentially meritorious causes of action to recover damages for breach of contract (see Menche v. CDx Diagnostics, Inc., 199 A.D.3d 678, 157 N.Y.S.3d 61 ; Magee–Boyle v. Reliastar Life Ins. Co. of New York, 173 A.D.3d 1157, 1159, 105 N.Y.S.3d 90 ), and based on an unjust enrichment theory (see Betz v. Blatt, 160 A.D.3d 696, 701, 74 N.Y.S.3d 75 ; Travelsavers Enters., Inc. v. Analog Analytics, Inc., 149 A.D.3d 1003, 1006, 53 N.Y.S.3d 99 ). Therefore, the Supreme Court improvidently exercised its discretion in granting the defendants’ motion pursuant to CPLR 3126 to preclude the plaintiffs from offering evidence at trial (see Liese v. Hennessey, 164 A.D.3d 1318, 1319, 83 N.Y.S.3d 618 ; Tanriverdi v. United Skates of Am., Inc., 164 A.D.3d at 859–860, 83 N.Y.S.3d 542 ; see also Latture v. Smith, 304 A.D.2d at 536, 758 N.Y.S.2d 135 ).
However, the Supreme Court providently exercised its discretion in denying the plaintiffs’ cross motion to strike the defendants’ answer and to preclude the defendants from offering any evidence at trial. "[T]he drastic remedy of striking a pleading or even precluding evidence ... should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious" ( Palmieri v. Piano Exch., Inc., 124 A.D.3d 611, 612, 1 N.Y.S.3d 315 [citation omitted]; see Sweet Constructors, LLC v. Wallkill Med. Dev., LLC, 188 A.D.3d 1279, 1280, 132 N.Y.S.3d 871 ). Here, at the time of the plaintiffs’ motion, the date set by a prior order for the depositions of the defendants had not yet passed. Further, although the defendants previously adjourned their depositions, "multiple adjournments of a party's deposition are generally not grounds" for striking a pleading ( De Leo v. State–Whitehall Co., 126 A.D.3d 750, 752, 5 N.Y.S.3d 277 ; see JPMorgan Chase Bank, N.A. v. New York State Dept. of Motor Vehs., 119 A.D.3d 903, 990 N.Y.S.2d 577 ). Under these circumstances, the court providently exercised its discretion in denying the plaintiffs’ cross motion (see De Leo v. State–Whitehall Co., 126 A.D.3d at 752, 5 N.Y.S.3d 277 ; Palmieri v. Piano Exch., Inc., 124 A.D.3d at 612, 1 N.Y.S.3d 315 ).
DILLON, J.P., BRATHWAITE NELSON, RIVERA and WOOTEN, JJ., concur.