47 Div. St. Trading, Inc.v. CKD Div. Realty Corp.
| Decision Date | 21 January 2022 |
| Docket Number | 595513/2018,INDEX 150209/2018 |
| Citation | 2022 NY Slip Op 30197 (U) |
| Parties | 47 DIVISION STREET TRADING, INC., Plaintiff, v. CKD DIVISION REALTY CORP., Defendant. CKD DIVISION REALTY CORP. Plaintiff, v. NY MEI JIN INC. and 49 HUA XIA RESTAURANT INC. a/k/a NEW HUA XIA SEAFOOD RESTAURANT, INC. Defendant. |
| Court | New York Supreme Court |
The following e-filed documents, listed by NYSCEF document number (Motion 004) 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98 101, 102, 103 were read on this motion to/for STRIKE PLEADING .
This property damage action arising from flooding on the subject commercial premises was commenced in January 2018, discovery commenced in March 2018 when the first demand was served and a third-party action was commenced by the defendant in June 2018 seeking indemnification. A bankruptcy stay was in effect from October 2019 to March 2020, after third-party defendant NY Mei Jin, Inc. filed a Chapter 7 bankruptcy petition. A preliminary conference order, dated April 19, 2019, set a discovery schedule and set the Note of Issue deadline as December 6, 2019. Numerous discovery conferences ensued.
A compliance order dated December 5, 2019, states that the third-party defendant failed to appear for the conference depositions were not conducted, and the Note of Issue date was to remain December 6, 2019. An order dated December 10, 2020, states that depositions were still not conducted and the reason given was that the parties were discussing settlement. The parties were cautioned that settlement discussions do not stay discovery deadlines. The court set a new deposition schedule, all discovery to be completed on or before February 22, 2021. The Note of Issue date was extended to March 12, 2021, and marked "Final 2X".
An order dated April 8, 2021, indicates that depositions were still not conducted without excuse and directed that they be conducted on or before May 19, 2021, and third-party depositions be conducted on or before June 14, 2021. The order extended the Note of Issue deadline to July 30, 2021, and marked the date "FINAL 3X - absent motion practice, no extensions will be granted." Discovery was not completed and no Note of Issue was filed.
An order dated June 24, 2021, states that the deposition of the plaintiff's principal, Jefferson Li, was not conducted, and his counsel represented that Li serves in the military. Counsel represented that the deposition of the third-party defendant was not conducted as they were waiting for Li to appear for his deposition first. The order directed that all depositions and post-deposition discovery be completed prior to the Note of Issue deadline, July 30, 2021. The date was marked "FINAL 3X - absent motion practice, no extension of NOI will be granted."
On June 28, 2021, the plaintiff moved to extend the Note of Issue deadline (MOT SEQ 003). By an order dated July 7, 2021, the court granted the plaintiff's motion, set the new date as September 30, 2021, and directed that all discovery, including third-party discovery, be completed prior to that date or would be deemed waived. Discovery was not completed and no Note of Issue was filed. As such, discovery was waived.
On September 15, 2021, defendant/third-party plaintiff CKD Division Realty Corp. moved pursuant to CPLR 3126 to (1) strike the plaintiff's complaint and answer of third-party defendant NY Mei Jin, Inc. for failure to provide discovery as directed in the court orders; or (2) preclude the plaintiff from introducing evidence at trial with respect to those items to which the plaintiff has not provided discovery or particulars, or (3) compel the plaintiff and CKD Division Realty Corp to provide discovery and extend the Note of Issue deadline for that purpose. CKD counsel alleges that when she attempted to schedule plaintiff's deposition between July and September 2021, plaintiff's counsel informed her that his client was serving in the military and was working for FEMA that summer, and plaintiff's counsel thereafter failed to respond to CKD's counsel's communications. Counsel further alleges that the remote deposition of the witness for the third-party defendant was scheduled for August 26, 2021, but the witness failed to appear. Despite numerous communications requests, the plaintiff and third-party defendant failed to contact CKD's counsel to set any new date.
Third-party defendant opposes the motion by an affirmation of counsel in which he states that on August 26, 2021, the witness for his client, a Mr. Jiang, was not deposed due to the witness' lack of computer equipment and miscommunications with the reporting service. Counsel claims he then rescheduled the deposition for September 17, 2021, but he soon canceled that date once he recalled that he had to be out of town.
The plaintiff cross-moves requesting yet another extension of the Note of Issue deadline. Counsel states, without benefit of any affidavit or documentary support, that the delays were caused by the plaintiff's "service on the United States Coast...
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