Marshalls of MA, Inc. v. CAC Atl., LLC

• Decision Date: 01 March 2023
• Docket Number: Index No. 500695/2022,Motion Seq. Nos. 2,3,4,NYSCEF Doc. No. 159
• Citation: 2023 NY Slip Op 30646 (U)
• Parties: MARSHALLS OF MA, INC., Plaintiff, v. CAC ATLANTIC,. LLC, Defendant,
• Court: New York Supreme Court

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2023 NY Slip Op 30646(U)

MARSHALLS OF MA, INC., Plaintiff, v. CAC ATLANTIC,. LLC, Defendant,

Index No. 500695/2022, Motion Seq. Nos. 2, 3, 4, NYSCEF Doc. No. 159

Supreme Court, Kings County

March 1, 2023

Unpublished Opinion

DECISION AND ORDER

Hon Leon Ruchelsman, JSC

The defendant, has moved, seeking to conditionally preclude the plaintiff from-'introducing evidence at trail unless it fully complies, with the discovery sought by defendant. The plaintiff has cross-moved seeking the production of document's requested during a deposition. The motions have been opposed, respectively. Papers were submitted by the parties and arguments held. After reviewing, all the arguments this court now makes the following determination.

On January 31, 2015 the plaintiff lease space, from the defendant at 66 Boer urn Place in Kings County. A dispute arose concerning the plaintiff's share of taxes that were due and the defendant issued a notice of default on the grounds the plaintiff had failed to pay such taxes. A Yellowstone injunction was granted on April 11, 2022 and the parties proceeded with discovery.

On October 24, 2022 the defendant served the plaintiff with a deficiency letter and outlined five- categories of deficiency. On December 13, 2022 the plaintiff produced more than, five hundred documents in response to those deficiencies. Further the plaintiff, informed the defendant that certain discovery they sought had not been produced. The parties, engaged in discussions in attempts to resolve, these, discovery disputes but to no avail. These motions, have now been filed.

Conclusions of Law

It is well settled that the- trial court-maintains broad discretion concerning the discovery process and any sanction for any Violation (Bouri v. Jackson, 177 A.D.3d 947, 113 N.Y.S.3d. 2.32 [2d Dept., 2019.]). The severe sanction of striking a pleading is appropriate where it can be demonstrated that the failure to comply with discovery was the result of wilful and. contumacious conduct (Rosenblatt v. Franklin Hospital Medical Center, 165 A.D.3d 862, S5 N.Y.S.3d 488 [2d Dept., 2018]). Such conduct may be inferred from a party's actions, specifically a long period of. time passing without complying with the discovery coupled with the absence of any reasonable excuse to explain such failure to comply (Morson v. 5899 Realty LLC 171 A.D.3d 916, 98 N.Y.S.3d 1.2 7 [2d Dept., 2019]). Generally, the failure of either party to. provide sought after discovery and to follow the. express order of the court demonstrates a pattern of wilful default and neglect concerning the outstanding discovery (Espinal v. New York City Health and Hospitals. Corp., 115 A.D.3d 641, 981 N.Y.S.2d 569 [2d Dept., 2014]).

Concerning the first item of the deficiency letter., namely five emails, three of them have been produced and two of them have been deemed privileged by the plaintiff and will not be-produced by them. The second item sought is "responsive email communications between CAC and Marshalls'' (see. Deficiency Letter, dated October 24, 2022 [NYSGEF Doc, No. 77]). The plaintiff, has asserted they have produced hundreds of emails satisfying this demand;. The third item sought are draft leases. The plaintiff asserts; any drafts they have discovered are privileged and will not be disclosed to the defendant. The fourth item of the deficiency letter is the failure to organize the documents already produced pursuant to CPLR 3122 (c). The last item contained in the deficiency letter is the failure to produce a letter of intent from TJ Maxx. The plaintiff asserts that it does not have such letter in its possession.

Concerning the assertion of privilege, in the plaintiffs-first response to defendant's discovery demand dated August 15, 2 022 the plaintiff, indicated that "Tenant objects to the Demands insofar as they seek, or can be. construed to seek the disclosure of documents, subject to the attorney-client privilege, work-product, or any other applicable privilege or information protected from discovery" (see... Plaintiff s Response to First Notice, of Discovery and Inspection ¶ 1. [NYSCEF Doc. No, 57].). Further, paragraph 7 of the response states that "Tenant, objects to the Demands to the extent they seek proprietary or^:confidential documents subject to the .attorney-client privilege" (id). Thus, defendant's argument that "at no point during the discovery conference, held by the parties or during the subsequent conference held with the Court's law clerk did. Marshalls disclose that it was withholding documents based on any alleged privilege" (see, Defendant's Reply Memorandum of Law, page 2 [NYSCEF Doc. No. 114].) is. difficult to comprehend since, they were aware of. such reliance since August 22, 202.2, In any event, surely ho evidence of wilful or contumatious conduct has. been presented. The plaintiff shall make its_: privilege log available to the defendant within twenty days Of receipt of this order.

Concerning the fourth item of the deficiency letter, CELR §3122 (c) states that "whenever a person is required pursuant to such notice or...