Manhattan Telecommunications Corp. v. Coburn & Meredith, Inc.

• Decision Date: 03 May 2023
• Docket Number: Index No. 155211/2019,Motion Seq. Nos. 003,004,NYSCEF Doc. No. 109
• Citation: 2023 NY Slip Op 31556 (U)
• Parties: MANHATTAN TELECOMMUNICATIONS CORPORATION, Plaintiff, v. COBURN & MEREDITH, INC., Defendant.
• Court: New York Supreme Court

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2023 NY Slip Op 31556(U)

MANHATTAN TELECOMMUNICATIONS CORPORATION, Plaintiff,
v.
COBURN & MEREDITH, INC., Defendant.

Index No. 155211/2019, Motion Seq. Nos. 003, 004, NYSCEF Doc. No. 109

Supreme Court, New York County

May 3, 2023

Unpublished Opinion

MOTION DATE 10/10/2022, 11/11/2022

DECISION + ORDER ON MOTION

LOUIS L. NOCK, J.S.C.

The following e-filed documents, listed by NYSCEF document numbers (Motion 003) 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 94, 105, and 106 were read on this motion to DISMISS .

The following e-filed documents, listed by NYSCEF document numbers (Motion 004) 89, 90, 91, 92, 93, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, and 107 were read on this motion for SANCTIONS.

Upon the foregoing documents, defendant's motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, strike the note of issue (Mot. Seq. No. 003), and plaintiff's motion for sanctions (Mot. Seq. No. 004), are consolidated for disposition. Defendant's motion is granted in part for the reasons set forth in the moving and reply papers (NYSCEF Doc. Nos. 69-70, 105), and the exhibits attached thereto, in which the court concurs, as summarized herein. Plaintiff's motion for sanctions is denied.

Plaintiff, a provider of telecommunications services, commenced this action seeking to recover unpaid bills to defendant for such services. Defendant, as part of its defense, asserts that the bills are not accurate, and reflect that plaintiff billed defendant for more telecommunications circuits than defendant was actually using (Castelli affirmation, NYSCEF Doc. No. 69, ¶ 4). Following the deposition of plaintiff's first witness, a compliance conference was held, after which the court ordered, inter alia, that plaintiff "will produce a new witness with knowledge of

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services and equipment provided to [defendant]" (compliance conference order dated February 2, 2020, NYSCEF Doc. No. 77). For various reasons the deposition was not held until April 26, 2022, at which time plaintiff produced Ian Goldin, plaintiff's former national account manager and current director of inside channel sales (Goldin EBT tr, NYSCEF Doc. No. 81 at 10). At various points of his deposition, Goldin testified that he did not have knowledge of the process by which the telecommunications circuits used by defendant were connected and disconnected, and how defendant was billed accordingly, which facts are central to defendant's asserted challenge to plaintiff's bills (id. at 111-112, 119-120, 121-123, 136-139). Subsequently, defendant made several attempts to take the deposition of a witness from plaintiff with knowledge of these issues, including motion practice (affirmation of good faith, NYSCEF Doc. No. 70, ¶¶ 4-10). By orders dated July 27, 2022, and September 2, 2022, the court directed that plaintiff produce such a witness on or before the close of discovery on September 26, 2022 (orders, NYSCEF Doc. Nos. 84-85). At no time did plaintiff seek a protective order barring such a deposition, and in fact informed defendant twice that it was attempting to schedule a witness for deposition but was having difficulty finding availability to do so (emails, NYSCEF Doc. Nos. 83, 86). Ultimately, plaintiff failed to produce a witness, and instead filed a note of issue in which it asserted that all necessary discovery was complete (note of issue, NYSCEF Doc. No. 106).

Where a party "refuses to obey an order for disclosure or willfully fails to disclose information which the...