Barbieri v. City of New York

2025 NY Slip Op 31168(U)

• Court: New York Supreme Court, New York County
• Decided: April 8, 2025
• Docket: Index No. 160417/2022
• Status: Unpublished

Opinion

Barbieri v City of New York 2025 NY Slip Op 31168(U) April 8, 2025 Supreme Court, New York County Docket Number: Index No. 160417/2022 Judge: Ariel D. Chesler 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. FILED: NEW YORK COUNTY CLERK 04/08/2025 04:47 PM INDEX NO. 160417/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 04/08/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARIEL D. CHESLER PART 51M Justice ---------------------------------------------------------------------------------X INDEX NO. 160417/2022 DOMENICO BARBIERI, MOTION DATE 09/30/2024 Plaintiff, MOTION SEQ. NO. 001 -v- THE CITY OF NEW YORK, NEW YORK CITY DECISION + ORDER ON DEPARTMENT OF SMALL BUSINESS SERVICES MOTION Defendant. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 were read on this motion to/for STRIKE PLEADINGS .

Upon the foregoing documents, it is

In this motion, plaintiff seek to strike the defendant’s (“City”) Answer pursuant to CPLR

3126 for defendant’s failure to comply with procedural requirements including scheduling a

Preliminary Conference (“PC”). Defendant opposes the motion.

This action grounded in personal injuries was commenced in 2022. On or about February

6, 2023, the City served a Verified Answer, Bill of Particulars and Combined Demands. Plaintiff

filed a Request for a PC on or about May 18, 2023. On or about January 30, 2024, plaintiff filed

a letter on NYSCEF requesting that a PC be scheduled.

Plaintiff asserts that the Answer must be stricken as defendant has failed to comply with

the scheduling of the PC. Additionally, plaintiff claims that defendant further delayed the matter

by refusing to enter into a Case Scheduling Order (“CSO”).

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In opposition, as an initial matter defendants claim the motion is procedurally defective

for failure to include an affirmation of good faith pursuant to 22 NYCRR 202.7(a) and for failure

to first conference with the Court prior to filing a discovery motion in accordance with Part 62

Rules. Defendants further note that a PC has not yet taken place with the Differentiated Case

Management (“DCM”) Part, and the DCM part has not generated a CSO.

While Plaintiff made various efforts to schedule a PC or agree to a discovery exchange

schedule, defendants advised they could not consent to entering a CSO. Ultimately, plaintiff filed

this current motion on or about September 30, 2024.

Pursuant to the Part 62 Rules1 no discovery motions shall be filed absent leave of Court

and if a discovery dispute arises that cannot be resolved by the DCM part, Counsel must request

a pre-motion conference with the part. No request for a pre-motion conference was made, the

Court did not grant permission to file this motion, and this matter has not yet been before the

DCM part. The filing of a letter on NYSCEF requesting a PC does not comply with this Part’s

Rules for filing a discovery motion. The motion is denied for failure to comply with the Part 62

Rules.

Pursuant to CPLR 3126, a Court may strike a party’s pleading if that party refuses to

obey an order for disclosure or willfully fails to disclose information that should have been

disclosed. The First Department has held that striking a party’s pleadings is a drastic sanction

and must be accompanied with a clear showing that a party’s failure to comply with discovery

orders was willful, contumacious or in bad faith (see Scher v. Paramount Pictures Corp, 102

AD2d 471 [1st Dept 2001]).

1 This motion was filed while Judge Sweeting was presiding over this matter. Both the current Part 62 rules and Judge Sweeting’s prior Part rules require leave of Court to file a discovery motion. 160417/2022 BARBIERI, DOMENICO vs. THE CITY OF NEW YORK ET AL Page 2 of 4 Motion No. 001

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Here, it cannot be contested that a PC still has not been held and there is no CSO in place.

Court Administrators have directed that for suits filed against the City, parties are to use the

DCM part and this specific process to handle the massive caseload. Of course, this is well within

the discretion of the Courts to establish and have parties utilize this process.

Unfortunately, due to various constraints and limitations the DCM part has not reached

this case in its queue. However, it is anticipated that a preliminary conference will be held in this

matter pursuant to the administrative order of priority. While plaintiff’s frustration with the speed

of the process is understandable, the process cannot be avoided or sidestepped. Notably the City

does not have any control over the DCM Part or when PCs are scheduled. Additionally, while the

parties may enter into a CSO upon consent it is not mandatory. The City has not acted willfully

given that there is no CSO to follow and this motion is denied as premature.

Defendant’s argument regarding 22 NYCRR 202.7 (a) need not be addressed as the

motion has been denied for the reasons stated above. However, even if the Court were to find

that Plaintiff Counsel’s affirmation constituted an affirmation of good faith, it still lacks

specificity needed to show a good faith effort was made.

Accordingly, it is hereby

ORDERED, that the motion to strike defendant’s answer is denied for the reasons stated

above; and it is further

ORDERED, that plaintiff shall not file any discovery related motions without leave of

Court; and it is further

ORDERED, that the May 1, 2025, oral argument date is vacated.

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This constitutes the decision and order of the court.

4/8/2025 DATE ARIEL D. CHESLER, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ GRANTED X DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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