2118 Group LLC v. Lior Group LLC

2024 NY Slip Op 32343(U)

• Court: New York Supreme Court, New York County
• Decided: July 8, 2024
• Status: Unpublished

Opinion

2118 Group LLC v Lior Group LLC 2024 NY Slip Op 32343(U) July 8, 2024 Supreme Court, New York County Docket Number: Index No. 652737/2022 Judge: Emily Morales-Minerva Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 652737/2022 NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 07/09/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. EMILY MORALES-MINERVA PART 42M Justice --------------------X INDEX NO. 652737/2022 2118 GROUP LLC, MOTION DATE 04/23/2024 Plaintiff, MOTION SEQ. NO. 004 - V-

LIOR GROUP LLC, AMIR SHRIKI DECISION + ORDER ON MOTION Defendants. --------------------X.

The following e-filed documents, listed by NYSCEF document number {Motion 004) 95, 96, 97, 99, 100, 101, 102, 103 were read on this· motion to/for STRIKE PLEADINGS

APPEARANCES:

Bedford Soumas LLP, New York, New York (Gregory Charles Soumas, Esq., of counsel) for Plaintiff.

Belkin Burden Goldman LLP, New York, New York (Adam Michael Bernstein, Esq., of counsel) for Defendants.

HON. EMILY MORALES-MINERVA:

In this action for, among other things, unpaid rent, 2118

GROUP LLC ("plai~tiff") moves, by notice of motion dated April

23, 2024, pursuant to CPLR §§ 3214 and 3126, for an order:

striking the answer by defendants, LIOR GROUP LLC and AMIR

SHRIKI (collectively "defendants") and entering a default

judgment against defendants. In the alternative, plaintiff seeks

an order, "staying" the note of issue (NOI) date, and Status

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Conference order (N. Bannon, J.S.C.), dated February 15, 2024, 1

"until [said] "Order is obeyed."

Defendants submit opposition to the motion.

For the reasons set forth below, the motion is granted to

the limited extent that the note of issue deadline is extended

to September 6, 2024, and a new schedule is set for discovery;

the motion otherwise denied.

BACKGROUND

Plaintiff 2118 GROUP LLC, owner of the subject residential

premises, commenced this action for, among other things, unpaid

rent. Thereafter, defendant LIOR GROUP LLC, the tenant, and

defendant AMIR SHRIKI, the personal guarantor of the lease

(collectively "defendants"), filed an answer with affirmative

defenses and counterclaims.

On February 9, 2023, the Court (N. Bannon, J.S.C.) issued a

preliminary conference order, setting forth a schedule for

completion of depositions and all discovery, and scheduling a

compliance conference (see NY St Cts Elec Filing [NYSCEF] Doc.

No. 25, preliminary conference order, dated February 9, 2023).

1 Plaintiff correctly points out that the subject Status Conference Order appears to be misdated as issued on "2/15/23" (NY St Cts Elect Filing [NYSCEF] Doc. 84, at 2).

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At or around two weeks before said conference, plainti

filed a motion to strike defendants' answer for ilure to

,produce witnesses for noticed depositions, to enter a default

judgment; in the alternative, plainti sought an order,

"staying the [preliminary conference order] and compelling

defendants to produce witnesses for depositions until the

[preliminary conference order] is obeyed" see NYSCEF Doc. 43,

not of motion, dated April 26, 2023). Defendants filed

opposition, and cross-moved to, among other things, strike the

complaint for plainti 's failure to comply with defendants'

discovery demands (see [NYSCEF] Doc. No. 46, notice of cross-

motion) .

The Court (N. Bannon, J.S.C.) issued an order, denying both

the motion (sequence no. 002), and the cross-motion (sequence

no. 003} without prejudice see Decision and Order, dated June

9, 2023 [N. Bannon J.S.C.]). Said order recommended the parties

raise their discovery issues at the forthcoming compliance

conference, scheduled for June 15, 2023, and/or that the parties

request additional time for discovery (id.).

Both parties appeared at the next compliance conference,

indicating essentially a failure of the other to cooperate in

the discovery process. The same Court (N. Bannon, J.S.C), found

"'paper' discovery has not been completed without reasonable

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excuse," and issued an order accordingly (see NYSCEF Doc. No.

61, compliance conference order, dated June 15, 2023, at 1).

In the order, among other things, the court directed

defendants to immediately provide "response to plaintiff's

demand for B/P [bill of particulars] and responses to

plaint f's D&I [discovery and inspection] with documents today

[June 15, 2023]" id. at 2). As to plainti , the same court

ordered it to "respond to any previously served interrogatories

by 7/7/2023" (id.).

Following a status conference on August 24, 2023, the Court

(N. Bannon, J.S.C.) issued an order (NYSCEF Doc. No. 67, status

conference order, dated August 24, 2023 [citations to compliance

conference order, dated June 15, 2023, omitted]). The status

conference order, provided, among other things:

"plaintiff did not provide responsive documents . . . and counsel represents that there are no responsive documents. Plaintiff failed to respond to previously served interrogatories . . . without reasonable excuse"

(id. at 1).

Finally, the order directed plaintiff to comply with the

outstanding discovery and set another schedule, providing that,

if plaintiff failed to answer interrogatories by September 06,

2023 "under oath," "plaintiff is precluded from offering

evidence at trial, or on a dispositive motion (e.g. summary

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judgment), concerning the subject matter of any interrogatory

unanswered" id. at 1 ) . The Court also set forth a deadline

for completion of examinations before trial (EBT).

Despite the strong language in the August 2023 order, the

parties again appeared at the subsequence status conference

having not complied with the discovery schedule. The court (N.

Bannon, J.S.C.) then issued a second status conference order,

finding: "[the] parities did not conduce EBTS without reasonable

excuse and plaintiff did not produce all demanded documents or

submit Jackson affidavit per order [dated Aug. 24, 2023]" see

NYSCEF Doc No. 75, status conference order, dated Nov. 02, 2023,

at 1 [emphasis added]).

The same court directed plaintiff to produce all responsive

documents or a Jackson affidavit, or "plaintiff shall be

precluded from offering evidence at trial or in a dispositive

motion" (id., citing CPLR 3216 [emphasis in original]). The

status conference order, dated November 02, 2023, set forth a

schedule as follows: depositions to be completed by January 16,

2024, 2 and the note of is$ue to be led by February 21, 2024

(id.). Finally, the court marked the deadline "Final 2x," with

emphasis (id.).

2 The Court notes that while the order states the depositions should be completed by January 16, 2023, the intended year was clearly meant to be 2024. 652737/2022 2118 GROUP LLC vs. LIOR GROUP LLC ET AL Page5of12 Motion No. 004

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On February 15, 2024, at the next status conference, the

parties again appeared having not conducted the depositions.

The court (N. Bannon, J.S.C.), issued a third status conference

order, dated February 15, 2024, finding, among other things,

that the parties again had not complied with the previous court

order, as:

"EBTS were not conducted without reasonable excuse. Defendant did not produce noticed witness by court deadline, but, prior to deadline offered some dates soon after deadline"

see NYSCEF Doc. No. 84, status conference order, dated February

15, 2024, at 1 [emphasis added]). The court (N. Bannon, J.S.C.)

provided new dates for the completion of discovery, extended the

note of issue date to June 28, 2024, and marked such date "Final

3x" (id. [extra emphasis added]). Regarding the "Final 3x"

marking, Justice Bannon emphasized that there would be "no

extension of NOI absent motion practice" (id.).

Thereafter, plaintiff led its answers to interrogatories

on February 20, 2024 {see [NYSCEF] Doc. No. 87), and served a

notice to take the deposition of nonparty Mendy Furmanski on

March 19, 2024, and the deposition of defendant Amir Shriki on

March 21, 2024 {see [NYSCEF] Doc. No. 89). Plaintiff also filed

its response to defendants' demand to produce documents, and a

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Jackson affidavit, as previously ordered (see (NYSCEF] Doc. Nos.

90, 94).

However, the above witnesses, including defendant Amiri

Shriki, personal guarantor of the subject lease, failed to

appear for their depositions.

Consequently, plaintiff filed the instant motion (sequence

no. 004), for an order striking defendants' answer and entering

a default judgement against defendant or, in the alternative, an

order "stay[ing]" the note of issue date and status conference

order, dated February 20, 2024, until defendants comply with

said order.

In opposition, defendants contend that the witnesses did

not appear at the depositions because the parties were engaged

in settlement discussions involving several cases involving

defendant guarantor, which defendants believed suspended

discovery. 3 Defendants submit proof of the.parties 1 settlement

negotiations (see [NYSCEF] Doc No. 100-102, Defendants' exhibits

1-3). Defendants also contend that defendant Amiri Shriki

"remains ready, willing and able to attend a deposition" (NYSCEF

Doc No. 99, Affirmation of Adam M. Bernstein, at i 6).

3 There are three cases involving defendant: the instant case, Bold Group, LLC v Omri Rachmut and Amir Shriki, Index No. 653735/2022, and In Group LLC v Thomas Datny and Amir Shriki, Index No. 654214/2022. 652737/2022 2118 GROUP LLC vs. LIOR GROUP LLC ET AL Page7of 12 Motion No. 004 ·

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ANALYSIS

CPLR § 3101 (a) provides that "[t]here shall be full

disclosure of all matter material and necessary in the

prosecution or defense an action" see Osowski v AMEC Constr.

Mgt., Inc., 69 AD3d 99, 106 [1st Dept 2009] [internal quotation

marks and citation omitted]). The courts interpret this statute

"liberally to require disclosure, upon request, of any facts

bearing on the controversy which will assist preparation for

trial by sharpening the issues and reducing delay and prolixity"

It is black letter law that the court may dismiss a party's

pleading, if "a party unreasonably neglects to proceed generally

in an action or otherwise delays in the prosecution thereof

against any party who may be liable to a separate judgment, or

unreasonably fails to serve and file note of issuen (CPLR 3216

[a] [governing want of prosecution]). The plain language of Rule

3216 of the CPLR, provides, however, that no court may dismiss

an action, and no party may make a motion seeking dismissal of

an action unless a written demand has been served on the party

prosecuting the action to serve and file a note of issue within

90 days after receipt of such demand (Chase v. Scavuzzo, 87 NY2d

228, 230 [1995]; see also Grant v Rattoballi, 57 AD3d 272, 273

[ 1st Dept 2008] ; CPLR § 326 [b] [ 3] [providing that the court or

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party seeking dismissal for want of prosecution shall provide

90-day notice]).

To this end, a conference order directing the plaintiff to

file a note of issue and warning that failure to comply may

serve as a basis for dismissal has the same effect a valid

90-day notice pursuant to CPLR 3216 (see Cato v City of New

York, 70 AD3d 472 [1st Dept 2010], citing Vinikour v Jamaica

Hosp., 2 AD3d 518 [2d Dept 2003] [holding that a conference order

directing the plaintiff to file a note of issue and warning that

failure to comply may serve as a basis for dismissal, pursuant

to CPLR § 3216]).

In addition, "a court may strike a pleading as a sanction

against a party who [otherwise] refuses to obey an order for

disclosure see CPLR 3126 [3]; see Rodriguez v United Bronx

Parents, Inc., 70 AD3d 492, 492 [1st Dept 2010] [internal

citation omitted]). Such action is appropriate "only when the

moving party [for such relief] establishes 'a clear showing that

the failure to comply is willful, contumacious or in bad faith'"

(Rodriguez 70 AD3d at 492 [internal citation omitted]).

Generally, settlement discussions shall not be an excuse to

stay discovery or to fail to comply with a court order of

discovery (see Diamond v WWP Off., LLC, 202 AD3d 503, 503 [1st

Dept 2022]). However, under the circumstances here, where

plaintiff was often the party failing to comply with the court-

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ordered discovery schedule, despite the orders of the court (N.

Bannon, J.S.C.), and defendants present a colorable argument,

the undersigned is not inclined to exercise its discretion to

impose the harsh sanction of striking defendants' complaint and

granting plaintiff a default judgment (see National Convention

Servs., LLC v. FB Intl., Inc., 221 AD3d 462, 463 [1st Dept 2023]

[reaffirming: "(The trial) court is vested with broad discretion

to control its calendar and supervise disclosure in order to

facilitate the resolution of cases, and the imposition of

sanctions for discovery misfeasance is generally a matter best

left to the trial court's discretion;" see also CDR Creances

S.A.S. v Cohen, 62 AD3d 576 [1st Dept 2009]).

In any event, on this record, plaintiff makes no clear

showing that the witnesses, including defendant Amir Shriki,

failure to appear at the deposition was "willful, contumacious

or in bad th" (Rodriguez 70 AD3d at 492 [internal citation

omitted]).

While the Court denies striking defendants' answer and

issuing a default against defendant, such denial shall be

without prejudice. Defendant Amir Shriki shall appear for

deposition no later than August 16, 2024, and such date shall

not be extended absent motion practice.

To the extent that plaintiff seeks, in the alternative, an

order "stay[ing]" the note of issue date and the previous status

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conference order, the Court finds no authority for such relief.

Therefore, instead of granting this request, the Court will

extend the date for filing note of issue for purposes of

accommodating the new date for completion of the defendant Amir

Shriki's depos ion and for the parties' full compliance with

the status conference order (N. Bannon, J.S.C.), dated February

15, 2024.

Accordingly, it is

ORDERED that the motion by plaintiff, 2118 Group LLC to

strike defendants' answer and for a default judgment against

defendants Lior Group LLC and Amir Shriki is denied; it is

further

ORDERED that note of issue be filed in this action no later

than October 6, 2024; it is further

ORDERED that defendants are to appear for depos ion no

later than September 02, 2024; and it further

ORDERED those future requests, if any, to extend discovery

shall be made by not or motion, upon showing reasonable

cause for the delays.

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. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT

07/08/2024 DATE

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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