Dozier v Grenaider Realty Corp. 2025 NY Slip Op 30622(U) February 24, 2025 Supreme Court, New York County Docket Number: Index No. 152004/2022 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. [FILED: NEW YORK COUNTY CLERK 02/24/2025 04: 17 PM] INDEX NO. 152004/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/24/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON . EMILY MORALES-MINERVA PART 42M Justice ---------------------------------------------------------------------------------X INDEX NO. 152004/2022 ATIYA L. DOZIER, MOTION DATE 11/26/2024 Plai ntiff, MOTION SEQ. NO. 00 1 - V -
GRENAIDER REALTY CORPORATI ON , HP BAY 1 PRESERVATION HOUSING COMPANY , INC , BAY PARK DEC ISION+ ORDER ON ONE -A LLC , BAY PARK ONE MM, LLC, MOTION
Defendants. --------------------------------------------------------------------------------X
The following e-filed documents , listed by NYSC EF document number (Moti on 001 ) 19, 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28, 29, 30 , 31 were read on th is motion to/for DISCOVERY
APPEARANCES:
Sacco & Fi llas LLP, New York, NY (Alexander T. Zhang, Esq . , of counsel), for plaintiff .
Quintairos , Prieto, Wood & Boyer, P.A., New York , NY (Tanya M. Branch , Esq ., of counse l ) , for defendants.
EMILY MORALES-MINERVA, J.S . C .
In this persona l injury a ction , p l aintiff ATIYA L . DOZ I ER
moves, by not ice of moti o n ( sequence number 001) , for
(a ) an order, pursuant to CPLR § 3124 , 1 c ompelling defendants
GRENAIDER REALTY CORPORATION, HP BAY 1 PRES ERVATION HOUS ING
COMPANY , INC, BAY PARK ONE-A LLC, and BAY PARK ONE MM , LLC, to
1 CPLR § 3 1 24 prov i des, "If a person f ails to respond to or comply with any request , notice, interrogatory, demand , question or o r der under this articl e, exce pt a notice to admit under sec tio n 3123 , the p arty seeking disclosure may move to compel compliance or a response . "
152004/2022 DOZIER, AT IYA L. vs . GRENAIDER REA LTY CORPORATION ET AL Page 1 of 8 Motion No. 001 001
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respond to outstanding discovery demands, and for (b) an order,
pursuant to CPLR § 2004, 2 extending the note of issue deadline.
For the reasons set forth below, the court grants the
motion entirely.
BACKGROUND
Plaintiff ATIYA L. DOZIER was injured when she fell on a
staircase located at 2750 West 33 rd Street Brooklyn, New York
(premises) (see New York State Courts Electronic Filing System
[NYSCEF] Doc. No. 001, Complaint). Defendants GRENAIDER REALTY
CORPORATION, HP BAY 1 PRESERVATION HOUSING COMPANY, INC, BAY
PARK ONE-A LLC, and BAY PARK ONE MM, LLC (defendants) own and
maintain the premises (see id.).
On February 24, 2022, plaintiff commenced the instant
action against defendants and on June 23, 2022, defendants
answered (see NYSCEF Doc. No. 008, Answer). Plaintiff served
discovery demands upon defendants on August 11, 2022 (see NYSCEF
Doc. No. 25, Plaintiff's Combined Discovery Demands).
Thereafter, the court (L. Headley, J.S.C.) held a
compliance conference and ordered "defendants to provide
2 CPLR § 2004 provides, "Except where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be Just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed."
152004/2022 DOZIER, ATIYA L. vs. GRENAIDER REALTY CORPORATION ET AL Page 2 of 8 Motion No. 001 001
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responses to plaintiff's combined demands dated 8/11/22 within
I 30 days; to the extent responded to, defendants to provide a
courtesy copy of responses within 30 days" (NYSCEF Doc. No. 018,
Compliance Conference Order, dated May 7, 2024 [L. Headley,
J. S. C.]) . The court set a note of issue filing deadline of
October 16, 2024 (see id.)
Now, plaintiff moves (seq. no. 001) for an order, pursuant
to CPLR § 3124, compelling defendants to respond to the combined
discovery demands dated August 11, 2022, and for an order to
extend note of issue, pursuant to CPLR § 2004, because discovery
remains outstanding.
Defendants do not appear or otherwise oppose the motion.
ANALYSIS
CPLR § 3101 (a) generally governs disclosure, directing
that "[t]here shall be full disclosure of all matter material
and necessary in the prosecution or defense of an action,
regardless of the burden of proof" (emphasis added). The
"'statute embodies the policy determination that liberal
discovery encourages fair and effective resolution of disputes
on the merits, minimizing the possibility for ambush and unfair
surprise'" (Forman v Henkin, 30 NY3d 656, 661 [2018], quoting
152004/2022 DOZIER, ATIYA L. vs. GRENAIDER REALTY CORPORATION ET AL Page3of8 Motion No. 001 001
3 of 8 [* 3] [FILED: NEW YORK COUNTY CLERK 02/24/2025 04: 17 PM] INDEX NO. 152004/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/24/2025
Spectrum sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 376
[1991]) .
Accordingly, our governing Court of Appeals has long
"emphasized that 1 [t]he words, "material and necessaryn,
are . . to be interpreted liberally to require disclosure,
upon request, of any facts bearing on the controversy which will
assist preparation for the trial by sharpening the issues and
reducing delay and prolixity. The test is one of usefulness and
reason" (Forman v Henkin, 30 NY3d 656, 661 [2018], quoting Allen
v Crowell-Collier Publ. Co., 21 NY2d 403, 406, [1968], citing
Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 746 [2000]).
"If a person fails to respond to or comply with any
request, notice, interrogatory, demand, question or order [for
discovery] the party seeking disclosure may move to compel
compliance or a response" ( CPLR § 3124) . However, "no motion
[relating to disclosure] shall be filed with the court unless
[as here] there have been served and filed with the motion
papers . . an affirmation that counsel has conferred with
counsel for the opposing party in a good faith effort to resolve
the issues raised by the motion" (Uniform Civil Rules for the
Supreme Court and County Court [22 NYCRR] § 202.7; see NYSCEF
Doc. No. 20, Affirmation of Good Faith).
Where a failure or refusal to comply with an order to
disclose exists, the "court may make such orders as are 152004/2022 DOZIER, ATIYA L. vs. GRENAIDER REALTY CORPORATION ET AL Page 4 of B Motion No. 001 001
[* 4] 4 of 8 [FILED: NEW YORK COUNTY CLERK 02/24/2025 04: 17 PM] INDEX NO. 152004/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/24/2025
just," including "striking out pleadings or parts thereof" {see
CPLR § 3126 [3]; see also Rodriguez v United Bronx Parents,
Inc., 70 AD3d 492, 492 [1st Dept 2010] [providing: "A court may
strike an answer only when the moving party establishes 'a clear
showing that the failure to comply is willful, contumacious or
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Dozier v Grenaider Realty Corp. 2025 NY Slip Op 30622(U) February 24, 2025 Supreme Court, New York County Docket Number: Index No. 152004/2022 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. [FILED: NEW YORK COUNTY CLERK 02/24/2025 04: 17 PM] INDEX NO. 152004/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/24/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON . EMILY MORALES-MINERVA PART 42M Justice ---------------------------------------------------------------------------------X INDEX NO. 152004/2022 ATIYA L. DOZIER, MOTION DATE 11/26/2024 Plai ntiff, MOTION SEQ. NO. 00 1 - V -
GRENAIDER REALTY CORPORATI ON , HP BAY 1 PRESERVATION HOUSING COMPANY , INC , BAY PARK DEC ISION+ ORDER ON ONE -A LLC , BAY PARK ONE MM, LLC, MOTION
Defendants. --------------------------------------------------------------------------------X
The following e-filed documents , listed by NYSC EF document number (Moti on 001 ) 19, 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28, 29, 30 , 31 were read on th is motion to/for DISCOVERY
APPEARANCES:
Sacco & Fi llas LLP, New York, NY (Alexander T. Zhang, Esq . , of counsel), for plaintiff .
Quintairos , Prieto, Wood & Boyer, P.A., New York , NY (Tanya M. Branch , Esq ., of counse l ) , for defendants.
EMILY MORALES-MINERVA, J.S . C .
In this persona l injury a ction , p l aintiff ATIYA L . DOZ I ER
moves, by not ice of moti o n ( sequence number 001) , for
(a ) an order, pursuant to CPLR § 3124 , 1 c ompelling defendants
GRENAIDER REALTY CORPORATION, HP BAY 1 PRES ERVATION HOUS ING
COMPANY , INC, BAY PARK ONE-A LLC, and BAY PARK ONE MM , LLC, to
1 CPLR § 3 1 24 prov i des, "If a person f ails to respond to or comply with any request , notice, interrogatory, demand , question or o r der under this articl e, exce pt a notice to admit under sec tio n 3123 , the p arty seeking disclosure may move to compel compliance or a response . "
152004/2022 DOZIER, AT IYA L. vs . GRENAIDER REA LTY CORPORATION ET AL Page 1 of 8 Motion No. 001 001
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respond to outstanding discovery demands, and for (b) an order,
pursuant to CPLR § 2004, 2 extending the note of issue deadline.
For the reasons set forth below, the court grants the
motion entirely.
BACKGROUND
Plaintiff ATIYA L. DOZIER was injured when she fell on a
staircase located at 2750 West 33 rd Street Brooklyn, New York
(premises) (see New York State Courts Electronic Filing System
[NYSCEF] Doc. No. 001, Complaint). Defendants GRENAIDER REALTY
CORPORATION, HP BAY 1 PRESERVATION HOUSING COMPANY, INC, BAY
PARK ONE-A LLC, and BAY PARK ONE MM, LLC (defendants) own and
maintain the premises (see id.).
On February 24, 2022, plaintiff commenced the instant
action against defendants and on June 23, 2022, defendants
answered (see NYSCEF Doc. No. 008, Answer). Plaintiff served
discovery demands upon defendants on August 11, 2022 (see NYSCEF
Doc. No. 25, Plaintiff's Combined Discovery Demands).
Thereafter, the court (L. Headley, J.S.C.) held a
compliance conference and ordered "defendants to provide
2 CPLR § 2004 provides, "Except where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be Just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed."
152004/2022 DOZIER, ATIYA L. vs. GRENAIDER REALTY CORPORATION ET AL Page 2 of 8 Motion No. 001 001
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responses to plaintiff's combined demands dated 8/11/22 within
I 30 days; to the extent responded to, defendants to provide a
courtesy copy of responses within 30 days" (NYSCEF Doc. No. 018,
Compliance Conference Order, dated May 7, 2024 [L. Headley,
J. S. C.]) . The court set a note of issue filing deadline of
October 16, 2024 (see id.)
Now, plaintiff moves (seq. no. 001) for an order, pursuant
to CPLR § 3124, compelling defendants to respond to the combined
discovery demands dated August 11, 2022, and for an order to
extend note of issue, pursuant to CPLR § 2004, because discovery
remains outstanding.
Defendants do not appear or otherwise oppose the motion.
ANALYSIS
CPLR § 3101 (a) generally governs disclosure, directing
that "[t]here shall be full disclosure of all matter material
and necessary in the prosecution or defense of an action,
regardless of the burden of proof" (emphasis added). The
"'statute embodies the policy determination that liberal
discovery encourages fair and effective resolution of disputes
on the merits, minimizing the possibility for ambush and unfair
surprise'" (Forman v Henkin, 30 NY3d 656, 661 [2018], quoting
152004/2022 DOZIER, ATIYA L. vs. GRENAIDER REALTY CORPORATION ET AL Page3of8 Motion No. 001 001
3 of 8 [* 3] [FILED: NEW YORK COUNTY CLERK 02/24/2025 04: 17 PM] INDEX NO. 152004/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/24/2025
Spectrum sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 376
[1991]) .
Accordingly, our governing Court of Appeals has long
"emphasized that 1 [t]he words, "material and necessaryn,
are . . to be interpreted liberally to require disclosure,
upon request, of any facts bearing on the controversy which will
assist preparation for the trial by sharpening the issues and
reducing delay and prolixity. The test is one of usefulness and
reason" (Forman v Henkin, 30 NY3d 656, 661 [2018], quoting Allen
v Crowell-Collier Publ. Co., 21 NY2d 403, 406, [1968], citing
Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 746 [2000]).
"If a person fails to respond to or comply with any
request, notice, interrogatory, demand, question or order [for
discovery] the party seeking disclosure may move to compel
compliance or a response" ( CPLR § 3124) . However, "no motion
[relating to disclosure] shall be filed with the court unless
[as here] there have been served and filed with the motion
papers . . an affirmation that counsel has conferred with
counsel for the opposing party in a good faith effort to resolve
the issues raised by the motion" (Uniform Civil Rules for the
Supreme Court and County Court [22 NYCRR] § 202.7; see NYSCEF
Doc. No. 20, Affirmation of Good Faith).
Where a failure or refusal to comply with an order to
disclose exists, the "court may make such orders as are 152004/2022 DOZIER, ATIYA L. vs. GRENAIDER REALTY CORPORATION ET AL Page 4 of B Motion No. 001 001
[* 4] 4 of 8 [FILED: NEW YORK COUNTY CLERK 02/24/2025 04: 17 PM] INDEX NO. 152004/2022 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/24/2025
just," including "striking out pleadings or parts thereof" {see
CPLR § 3126 [3]; see also Rodriguez v United Bronx Parents,
Inc., 70 AD3d 492, 492 [1st Dept 2010] [providing: "A court may
strike an answer only when the moving party establishes 'a clear
showing that the failure to comply is willful, contumacious or
in bad faith'" and finding failure to be willful and
contumacious where the defendant repeatedly and persistently
failed to comply with disclosure orders]).
Further, "CPLR 3126 [governing penalties for noncompliance
with an order of disclosure] authorizes trial courts to craft
self-executing orders that impose discovery sanctions on a party
unless that party submits to the disclosure within a specified
time" (Citizen Watch Co. of Am., Inc. v. Zapco 1500 Inv., L.P.,
216 AD3d 562, 562 [1st Dept 2023],citingGibbs v St. Barnabas
Hosp., 16 NY3d 74, 80 [2010]). Such "[c]onditional orders become
'absolute' upon failure to fully comply therewith" (id., citing
Casas v Consolidated Edison Co. of N.Y., Inc.,116 AD3d 648, 648
[1st Dept 2014] [emphasis added]) .
Indeed, upon noncompliance with a conditional order, the
trial '"court [is] not required to find that [the litigant's]
failure to comply was willful'" and dismissal of an answer as
set forth in the conditional order is automatic (Citizen Watch
Co., 216 AD3d at 562, quoting ~enter Sheet Metal v Cannon
Design, Inc., 185 AD3d 507, 508 [1st Dept 2020])
152004/2022 DOZIER, ATIYA L. vs. GRENAIDER REALTY CORPORATION ET AL Page 5 of 8 Motion No. 001 001
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Here, the court (L. Headley, J . S . C . ) o rdere d defendants to
provide responses to plaintiff ' s combined discovery demands by
June 7, 2024 (see NYSCEF Doc. No. 018, Compliance Conference
Order , dated May 7, 2024 [L. Headley, J . S . C.]). Defendants
disregarded said order and now, eight months late r, persist in
s uch disregard (see NYSCEF Doc . No. 21, Affirma t ion in Support )
Adding to the derelict i on of their du t y to comply with court-
directed d i sclosure, defendants submit no oppos ition to t h e
subject motion. They offer zero excus e for their noncompliance,
app earing boldly unbothered.
Therefore, in accordance with disc overy principles as set
for th above, and absent defe ndants ' opposition, the court grants
plaintiff's motion to compel d isclosu r e wit h a conditional
prec lusi on order, requiring defendants -- within 30 days of t h i s
order -- to comply with plaintiff's d is covery demand s and /o r to
provide an affidavit explaining why it is unable t o produce any
part o f such d iscovery. Upon fail ure, if any, to comply with
this c our t's conditional order, defendants ' answe r shall be
stric k en.
The cour t a lso g r a nts that part of plaintiff's motion
seeking an orde r extending the date fo r the fili ng of t he note
of issue. CPLR § 2004 provides the court with discretion to
"extend the t i me fixed by any statute, rule or order for doing
any act, upon such t e rms as may be j ust and upon good cause
15200412022 DOZIER, ATIYA L. vs . GRENAIDER REA LTY CORPORATION ET AL Page 6 of 8 Motion No. 001 001
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shown, whether the application for extension is made before or
after the expiration of the time fixed" (see Grant v City of New
York, 17 AD3d 215, 217 [1st Dept 2005]; Rozefort v Bronx Lebanon
Hosp. Ctr., 191 AD3d 586 [1st Dept 2021]).
Here, the record demonstrates good cause to extend the note
of issue deadline as defendants have undisputedly failed to
comply with court-directed discovery impeding plaintiff's
readiness for trial (see generally Uniform Rules for the Supreme
Court and the County Court [22 NYCRR] § 202.21 [governing notice
of issue and certificate of readiness]).
Accordingly, it is
ORDERED that motion (sequence no. 001) of plaintiff ATIYA
L. DOZIER is granted in its entirety; it is further
ORDERED that -- by March 28, 2025 defendants GRENAIDER
REALTY CORPORATION, HP BAY 1 PRESERVATION HOUSING COMPANY, INC,
BAY PARK ONE-A LLC, and BAY PARK ONE MM, LLC, shall produce all
discovery as demanded in plaintiff's combined discovery demands
and/or shall file with the court, upon notice to plaintiff, an
affidavit explaining why they are unable to produce any and each
part of such discovery; it is further
ORDERED that -- if defendants GRENAIDER REALTY CORPORATION,
HP BAY 1 PRESERVATION HOUSING COMPANY, INC, BAY PARK ONE-A LLC,
and BAY PARK ONE MM, LLC, fail to respond to the discovery
demands by March 28, 2025 and/or fail to provide an affidavit
152004/2022 DOZIER, ATIYA L. vs. GRENAIDER REALTY CORPORATION ET AL Page 7 of 8 Motion No. 001 001
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explaining why they are unable to produce any and each part of
discovery -- defendants' answer shall be stricken; and it is
further
ORDERED that plaintiff shall file with the court an
affidavit, upon notification to defendants, indicating whether
defendants have produced discovery as set forth herein, on or
before March 30, 2025.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
CHECK ONE: CASE DISPOSED ~a-a. NON-FINAL DISPOSITION u:c-'c0 EMILYORALES-MINERVA, J.S.C.
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
152004/2022 DOZIER, ATIYA L. vs. GRENAIDER REALTY CORPORATION ET AL Page 8 of 8 Motion No. 001 001
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