Wunderlich v. Liberty Meadows, LLC
| Decision Date | 01 June 2020 |
| Docket Number | Index 611937-2016 |
| Citation | 2020 NY Slip Op 34581 (U) |
| Court | New York Supreme Court |
| Parties | ALAN WUNDERLICH, Plaintiff, v. LIBERTY MEADOWS, LLC, DEMETRIUS TSUNIS & ENRICO SCARDA, Defendants THE HOWARD O. WUNDERLICH REVOCABLE LIVING TRUST, THE ADELINE E. WUNDERLICH REVOCABLE LIVING TRUST & ADELINE E. WUNDERLICH Nominal Defendants. Mot Seq No. 007 - Mot D; RTC |
Unpublished Opinion
Motion Submit Date: 02/27/20
Mot Conf Held: 06/25/19
PLAINTIFF'S COUNSEL: Law Offices of James A Preštiano PC
DEFENDANT'S COUNSEL: Esseks Hefter Angel DiTalia Pasca LLP
In this electronically filed action, on plaintiffs motion to strike defendants' answer or in the alternative to compel discovery, the Court considered the following papers: NYCEF Docs. Nos. 161-180; and upon due deliberation and full consideration of the same; it is
ORDERED that as follows; and it is further
ORDERED that plaintiffs counsel is: hereby directed to serve a copy of this decision and order with notice of entry via electronic filing and electronic mail upon all counsel forthwith; and it is further
ORDERED that, if applicable, within 30 days of the entry of this decision and order that defendant's counsel is also hereby directed to give notice to the Suffolk County Clerk as required by CPER 8019(c) with a copy Of this decision and order and pay any fees should any be required.
The parties and their counsel are presumed knowledgeable of all the salient and material, facts, and. circumstances underlying this matter, the same having been previously recited in this Court's prior decisions and Orders. In the interest and furtherance of judicial economy, the same will not be reiterated here.
As indicated previously fay this Court in prior decisions, discovery in this matter is on going with depositions of defendants haven completed. That notwithstanding, plaintiff has moved to strike defendants' answer pursuant to CPLR 3126 for failure to produce demanded disclosure, or failing: .that in the alternative to compel defendants' production of the requested discovery pursuant to CPLR 3.12J4.
The discovery dispute forming the basis of plaintiffs motion, deals With plaintiffs standing request for the production of certain documents, first requested in June 2017, and supplemented in August 2018, :after defendant Tsunis' and Scarda's depositions in March and May 2018, relating to the corporate dealings of defendant. Liberty Meadows concerning its management of its condominium community. Plaintiff, having learned new information concerning Tsunis and Scarda's corporate affairs in Liberty Meadows, bank, borrowing and governance of the company, and relationship with a purchaser of a specific condo unit in the community which plaintiff, contends should have been sold to him, sought production of documents such as the purchase agreement for that unit, emails and other correspondence and bank lending information for the company. Counsel for the parties agreed, to meet and confer to devise search terms for Scarda and Tsunis to employ in their diligent search for responsive documentation. Defendants made voluminous production of documents alleged to be responsive, but plaintiff maintains that much of if is repetitive. Further plaintiff maintains that still outstanding is any documentation pertaining to the subsequent sale: and conveyance of the condo unit plaintiff seeks to have specifically conveyed to him. Therefore, plaintiff seeks discovery sanctions or an order to compel, in addition to a binding representation of the defendants that the requested documentation does not exist.
Defendants oppose plaintiff's motion primarily on formalistic grounds. First they argue that a promotion conference required by this Court's rules was not held. However, counsel, for both parties appeared and conferenced this matter on June 25, 2019, rendering that argument hollow. Next defendants complain that, plaintiff's application lacks a proper affirmation of good faith rendering it fatally defective, This contention too is unsuccessful, where as here, the matter was the Proper subject of a subsequent court conference, negotiated stipulation between counsel and the application itself contains evidence in writing of counsels' attempt, to meet arid confer to reach a resolution of the discovery impasse. Lastly, defendants contend that the sanction of striking a pleading- is unwarranted here as too strict a penalty absent a prior conditional order. Moreover, defendants maintain that they have objected to plaintiff s discovery demands as burdensome, overbroad and seeking irrelevant information, In response, plaintiff-notes that this is the second such motion he has had to make to compel, discovery, warranting some heightened relief. Additionally, plaintiff argues that many, if not all of defendants' objections are waived, having not been made timely on receipt of plaintiff's demands.
CPLR 3101(a) broadly mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action." This provision is liberally interpreted in favor of disclosure (see Kavanagh v. Ogden Allied Maintenance Corp., 92 N.Y.2d 952, 954; Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406; Matter of Skolinsky, 70 A.D.3d 845, 892 N.Y.S.2d 913; Riverside Capital Advisors, hie v. First Secured Capital Corp., 292 A.D.2d 515, 739 N.Y.S.2d 281; Ural v Encompass Ins. Co. of Am., 97 A.D.3d. 562, 566, 948 N.Y.S.2d 621, 625-26 [2d Dept 2012]).
It is well settled that a trial court is vested with broad discretion to supervise the discovery process, and its determinations in that respect will not be disturbed in the absence of demonstrated abuse (see United Airlines v. Ogden New York Servs., 305 A.D.2d 239, 240, 761 N.Y.S.2d 16; Clio v. 401+403 57th St. Realty Corp., 300 A.D.2d 174, 176, 752 N.Y.S.2d 55); Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 1 A.D.3d 223, 224, 767 N.Y.S.2d. 228 [1st Dept, 2003]). However, the courts, on the other hand recognized that "parties to a civil dispute are free to chart their own. litigation course and, in so doing, they may stipulate away statutory, and even constitutional rights'" (Astudillo v MV Transp., Inc., 136 .A.D.3d 721, 721, 25 N.Y.S.3d 289, 290 [2d Dept 2016]). Thujs, it has often been said that for "the. credibility of court orders and the integrity of bur judicial system are to be maintained, a litigant cannot ignore court orders with impunity" (Jones v LeFrance Leasing Ltd. Partnership, 110 A.D.3d .1032, 1033, 973 N.Y.S.2d 798, 800 [2d Dept 2013]), The test to be employed by the Supreme Court when determining discovery issues is one based on usefulness and reason (see Andon v. 302-304 Mott St Assoc., 94 N.Y.2d 740, 746, 709 NY&2d 873). However, discovery demands which are unduly burdensome, lack specificity, or seek privileged and/or irrelevant information areimproper and will be vacated (see Board of Mgrs. of the Pari Regent Condominium v. Park Regent Assoc., 78 A.D.3d 752, 753, 910 N.Y.S.2d 654;.Bell v. Cobble Hill Health Ctr., Inc., 22 A.D.3d 620, 621, 804 N.Y.S.2d 362; Lopez v. Huntington Autohaus, 150 A.D.2d 351, 352, 540 N.Y.S.2d 874; H.R. Prince, Inc. v. Elite Envtl. Sys., Inc., 107 A.D.3d 850, 850, 968 N.Y.S.2d 122, 123-24 [2d Dept 2013]).
The words 'material and necessary', as used in section 3101 must 'be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues arid reducing delay and prolixity.' (Gould v Decolator, 131 A.D.3d 445, 446-47, 15 N.Y.S.3d 138, 140 [2d Dept 2015][internal citations omitted]):
It is incumbent on the party seeking disclosure to demonstrate that the method, of discovery, sought will result in. the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" (Crazytown Furniture v. Brooklyn Union Gas Co., 150 A.D.2d 420, 421, 541 N.Y.S.2d 30; see Seigel, N.Y. Prac. § 345; CPLR 3101[a]; Herbst v. Bruhn, 106 A.D.2d 546, 483 N.Y.S.2d 363; Andon v. 302-304 Mott St. Assocs., 94 N.Y.2d 740, 746, 709 N.Y.S.2d 873; Palermo Mason Constr. v. AARK Holding Corp., 300 A.D.2d 460, 751 N.Y.S.2d 599; Vyas v Campbell, 4 A.D.3d 417, 418, 771 N.Y.S.2d 375, 376 [2d Dept 2004]).
A motion to compel discovery under CPLR 3124 should be denied where the document demands are overly broad, vexatious,, and tend to confuse, rather than sharpen, the central issue of negligence (.. More importantly, where discovery requests are numerous, the court will not prune the requests even though some of them may be proper (Change v. SDI Intern., Inc., 15 A.D.3d. 520, 521, 789 NY S2d 892, 893. [2d Dept 2005]).
Generally "public policy strongly favors the resolution of actions on the merits whenever possible, the striking of a party's pleading is a drastic remedy which is warranted only where there has been a clear showing that the failure to comply with discovery is willful and contumacious" (Desiderio v Geico Gen. Ins. Co., 153 AD3.d 1322, 1322, 61 N YS3.d 309, 311 [2d Dept 2017]). On an...
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