BDS Copy Inks, Inc. v. Int'l Paper

• Decision Date: 11 December 2014
• Docket Number: 518146
• Parties: BDS COPY INKS, INC., et al., Appellants, v. INTERNATIONAL PAPER et al., Respondents.
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 1255
999 N.Y.S.2d 234
2014 N.Y. Slip Op. 08692

BDS COPY INKS, INC., et al., Appellants
v.
INTERNATIONAL PAPER et al., Respondents.

518146

Supreme Court, Appellate Division, Third Department, New York.

Dec. 11, 2014.

999 N.Y.S.2d 235

Hinman Straub, P.C., Albany (Jennie J. Shufelt of counsel), for appellants.

Hodgson Russ, LLP, Albany (Noreen DeWire Grimmick of counsel), for respondents.

Before: McCARTHY, J.P., EGAN Jr., Lynch, Devine and Clark, JJ.

Opinion

LYNCH, J.

123 A.D.3d 1255

Appeal from an order of the Supreme Court (Platkin, J.), entered March 12, 2013 in Albany County, which granted defendants' motion to, among other things, strike plaintiffs' complaint.

In September 2009, plaintiffs commenced this action to recover for damages suffered after they lost the opportunity to perform certain printing and copying services for the state. According to plaintiffs, they submitted a bid in October 2007 based on the price of certain paper that defendants represented complied with the bid's specification for the paper's recycled content. The state determined that the paper did not comply and rejected plaintiffs' bid. When the state reopened the bidding, plaintiffs asked defendants to provide conforming paper at a discount; defendants refused and the state awarded the contract to another entity. By their complaint, plaintiffs allege damages in the form of lost profits in the amount of $750,000.

In June 2010, defendants served combined discovery demands seeking “copies of any documents which reflect any loss of income ... due to the allegations in the [c]omplaint.” In September 2010, plaintiffs served a verified bill of particulars claiming damages in the amount of $1,500,000, characterized as the “profits that the plaintiffs would have made” if it had been

123 A.D.3d 1256

awarded the 2007 state contract.¹ As for the requested documents, plaintiffs stated that “any documents which reflect any loss of income to plaintiff[s]” were to be provided. In December 2010, defendants demanded plaintiffs' tax returns and “[c]opies of any documents pertaining to revenues received by [plaintiffs], including, but not limited to, invoices, cancelled checks, payment records, balance sheets and ledgers for the years 2002 to present.” In response, plaintiffs provided some, but not all, of the requested tax returns and a spreadsheet that purported to summarize annual sales for 2002 to 2009. In November 2011, plaintiffs' counsel wrote to defendants to invite their counsel to review “two or three pallets of documents that fall within the demand of the defendants.” Defendants did not undertake the offered review and, in February 2012, defendants moved to strike plaintiffs' complaint (see CPLR 3126[3] ) based on its failure to provide the supporting documentation. In response, and in an apparent attempt to resolve the issue, defendants agreed to withdraw the motion and to depose plaintiffs' principal, Jason Maltz. Plaintiffs also delivered three banker's boxes of documents to defendants' counsel “to see if the samples satisfy [defendants'] [d]iscovery

999 N.Y.S.2d 236

demands.” Defendants served a notice to produce with their notice of deposition, but Maltz did not bring any supporting documentation with him to the deposition. During the deposition, when asked whether there were any documents to support plaintiffs'...