East Dr. Hous. Dev. Corp. v Lawrence 2024 NY Slip Op 34156(U) November 15, 2024 Supreme Court, New York County Docket Number: Index No. 161032/2022 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 11/22/2024 03:07 P~ INDEX NO. 161032/2022 NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 11/22/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON. EMILY MORALES-MINERVA PART 42M Justice ---------------------------------------------------------------------------- -X INDEX NO. 161032/2022 EAST DRIVE HOUSING DEVELOPMENT CORPORATION, MOTION DATE 05/31/2024 Plaintiff, MOTION SEQ. NO. 014 - V -
STEVEN M LAWRENCE, TIFFANY LAWRENCE, IMANI DECISION + ORDER ON MANAGEMENT, INC. MOTION Defendant ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 014) 167, 179, 180, 181, 182,184,214 were read on this motion to/for SANCTIONS
APPEARENCES:
Judd Rothstein, Miami, Florida, (Judd R. Rothstein, Esq., of counsel) counsel, for plaintiff.
HON. EMILY MORALES-MINERVA:
In this breach of a proprietary lease and fiduciary duty
action, plaintiff EAST DRIVE HOUSING DEVELOPMENT CORPORATION
moves (motion sequence 014) for discovery and monetary
sanctions, as well as vacatur of note of issue, against
defendants STEVEN M. LAWRENCE and TIFFANY LAWRENCE
(udefendantsu) 1 for their failure to comply with the court's
January 18, 2024 discovery order (N. Bannon, J.S.C.). Plaintiff
1On July 25, 2024, plaintiff e-filed a stipulation of discontinuance, without prejudice, against defendant Imani Management, Inc. (_see NYSCEF Doc. No. 183). Accordingly, Steven and Tiffany Lawrence are the only remaining defendants.
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further moves for monetary sanctions pursuant to 22 NYCRR § 130-
1.1 to the extent of awarding it attorneys' fees related to the
instant motion.
Defendant TIFFANY LAWRENCE has never appeared or
participated in the instant action, and has not filed opposition
to the motion. Defendant STEVEN LAWRENCE also does not oppose
the motion.
For the reasons set forth below the motion is granted, in
limited part.
BACKGROUND
Plaintiff EAST DRIVE HOUSING DEVELOPMENT CORPORATION is an
affordable housing cooperative ("co-op"), and owner of the
building located at 205-207 East 124 th Street New York, New York
("building") (see NY St Elec Filing (NYSCEF) Doc. No. 002,
Complaint) .
In or around 2011, plaintiff and defendants entered into a
Proprietary Lease Agreement ("lease") whereby defendants became
tenants of Apartment 3C in the building (see id.). Several years
later, defendants purchased Unit 3B, and combined Units 3B and
3C into one single unit (see id.). In or around 2018,
defendants became "joint shareholders of 500 shares of [the co-
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op]" (id.) Moreover, Steven Lawrence was elected as Treasurer
(see id.}.
In or around 2021, an informal review of the financial
position of plaintiff was conducted, and it was noted that there
were "several significant deficiencies in fiscal management and
a general lack of adherence to procedural financial requirements
as mandated by the By-Laws" (id., at p 4). Thereafter, an in-
depth review was conducted, and it was revealed that "there were
numerous transactions on plaintiff's co-op [bank] account such
as transfers of more than $20,000 to other checking accounts
with no supporting documentation" (id.).
During a special meeting, Steven Lawrence, as Treasurer,
"sought to provide an explanation for various expenses" and
thereafter, on October 18, 2021, he resigned (id.). Plaintiff
alleges that "a minimum amount of $633,161 was stolen from
plaintiff by Steven Lawrence" (id. , at p 5) . However, plaintiff
provided Steven Lawrence with various opportunities to "rectify
the breach and defend himself", which Steven Lawrence chose not
to avail himself of (see id., at p 16).
Due to a lack of cooperation from defendants over the
course of several months as well as defendants' "objectionable
conduct", the Board of Directors "formally served [defendants] a
Notice of Termination of their lease" (id., at p 13). However,
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defendants failed to vacate Unit 3BC and ignored the Notice of
Termination (see id., at p 17).
Thereafter, plaintiff initiated this action on January 16,
2023 and asserted seven causes of action for, among other
things, a declaratory judgment for termination of the lease for
objectional conduct against defendants; unjust enrichment
against defendants; breach of fiduciary duty against Steven
Lawrence; and judgment against defendants to pay ongoing use and
occupancy (see id.)
On January 18, 2023, plaintiff moved, by pre-answer Order
to Show Cause (seq. no. 001), pursuant to Real Property Law
§ 220, for use and occupancy pendente lite. Shortly thereafter,
plaintiff moved, by pre-answer notice of motion (seq. no. 002),
pursuant to CPLR § 3215, for an entry of default judgment
against defendants. By interim order, dated March 3, 2023, the
court (N. Bannon, J.S.C.) adjourned both motions to March 22,
2023 for oral argument (see NYSCEF Doc. No. 35).
On March 11, 2023, Steven Lawrence answered and asserted
twelve affirmative defenses (see NYSCEF Doc. No. 41, Steven
Lawrence's Answer). Tiffany Lawrence did not answer. 2
Following oral argument on motion sequences 001 and 002,
the court (N. Bannon, J.S.C.) issued a decision and order
2 On March 11, 2023, Anthony S. Chilliest, Esq. filed a Notice of Appearance on behalf of Steven Lawrence and Tiffany Lawrence. However, Tiffany Lawrence did not file an answer to plaintiff's complaint.
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granting plaintiff's motion (seq. no. 001) for use and occupancy
pendente lite, to the extent that Steven Lawrence was directed
to pay plaintiff use and occupancy in the sum of $1,628.00 per
month, commencing on April 1, 2023, and continuing on the first
of each month thereafter until further order of the court (see
NYSCEF Doc. No. 68, Decision and Order, dated March 22, 2023).
Plaintiff withdrew, without prejudice, its motion (seq. no. 002)
for leave to enter a default judgment (see id.).
On May 25, 2023, the court (N. Bannon, J.S.C.) scheduled a
preliminary conference, whereby counsel for plaintiff and
counsel for Steven Lawrence appeared. However, Tiffany Lawrence
failed to appear, or otherwise notify the court as to her non-
appearance (see NYSCEF Doc. No. 59, Preliminary Conference
Order).
It follows that plaintiff again moved, by notice of motion
{seq. no. 004), pursuant to CPLR § 3215, for leave to enter a
default judgment, this time solely against Tiffany Lawrence.
Tiffany Lawrence did not oppose the motion. However, the court
(N. Bannon, J.S.C.) denied the motion, without prejudice to
renewal, reasoning that plaintiff failed to submit sufficient
proof of service of the summons and complaint, and proof of
Tiffany Lawrence's default, as well as sufficient proof of the
facts constituting the claims against her (see NYSCEF Doc. No.
71, Decision and Order, dated June 30, 2023).
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Thereafter, plaintiff moved, by notice of motion (seq. no.
006}, pursuant to CPLR § 3212, for partial summary judgment
against Steven Lawrence seeking, among other things, a
declaratory judgment that plaintiff's termination of the lease
and cancellation of the shares were proper, such that Steven
Lawrence's continued occupancy and possession of Unit 3BC was
unlawful, as well as a warrant of ejectment (see NYSCEF Doc. No.
57, Notice of Motion). Steven Lawrence opposed the motion.
The court (N. Bannon, J.S.C.) denied the motion, reasoning
that the majority of plaintiff's evidentiary submissions were
not in admissible form, and the proof that was in admissible
form was insufficient to establish the absence of a triable
issue of fact (see NYSCEF Doc. No. 120, Decision and Order,
September 6, 2023).
Thereafter, plaintiff filed three successive motions (seqs.
007, 008, 009} for a money judgment against defendants, a
default judgment against Tiffany Lawrence, and an order for an
upward modification of the use and occupancy chargeable to
defendants. By interim order dated August 16, 2023, the court
(N. Bannon, J.S.C.} scheduled each of the aforementioned motions
for oral argument on August 30, 2023 (see NYCSEF Doc. No. 89,
Interim Order, dated August 16, 2023} Further, in the same
order, the court again directed Steven Lawrence to pay monthly
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use and occupancy, and directed the payments to be made to
plaintiff's property management company (see id.}.
Following oral argument on motion sequences 007, 008, and
009, the court (N. Bannon, J.S.C) issued a joint decision and
order (see NYSCEF Doc. No. 116, Decision and Order, dated
September 8, 2024). First, the court marked motion sequence 007
as withdrawn, finding that the relief requested was duplicative
of the relief previously granted in the court's August 16, 2023
interim order, which directed Steven Lawrence to pay ongoing
monthly use and occupancy (see id.). Next, the court denied,
without prejudice, motion sequence 008 -- plaintiff's third
motion for leave to enter a default judgment against Tiffany
Lawrence -- and offered instructions as to how to properly
effectuate service upon her. This included a directive that
"Tiffany Lawrence shall be served with the summons and complaint
. by overnight mail and regular mail upon her counsel,
Anthony S. Chilliest, Esq . . and such service shall be deemed
good and sufficient service" (id.). Finally, motion sequence
009, which sought an upward modification of Steven Lawrence's
monthly use and occupancy, was marked as withdrawn without
prejudice.
On November 18, 2023, plaintiff moved for the fourth time,
by notice of motion (seq. no. 010), for leave to enter a default
judgment against Tiffany Lawrence. While that motion was
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pending, plaintiff also filed a motion (seq. no. 011) for a
money judgment, as well as a motion (seq. no. 012) to compel
Steven Lawrence to respond to plaintiff's document requests and
appear for deposition. Tiffany Lawrence did not oppose the
motion for a default judgment, and Steven Lawrence did not
oppose the motion for a money judgment or to compel.
Pending the motions, the court (N. Bannon, J.S.C.) held a
conference in which counsel for plaintiff and Steven Lawrence
were present. The court issued an order directing (1) plaintiff
to serve an amended document request by February 5, 2024; and
(2) Steven Lawrence to respond to plaintiff's amended document
demands or submit a "Jackson Affidavitn detailing the search for
documents by February 20, 2024 (see NYSCEF Doc. No. 155, Status
Conference Order, dated January 18, 2024; Jackson v City of New
York, 185 AD2d 768 [1st Dept 1992]).
On February 12, 2024, the court (N. Bannon, J.S.C.) issued
a combined decision and order on motion sequences 010, 011, and
012. This time, the court granted plaintiff's application for a
default judgment (seq. no. 010) against Tiffany Lawrence as to
liability on the first (declaratory relief that the lease was
properly terminated); fourth (injunctive relief enjoining an
unauthorized sale of the apartment); and fifth (use and
occupancy) causes of action (see NYSCEF Doc. No. 159, Decision
and Order, dated February 13, 2024). However, the court held
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that, uin light of the relief sought against both defendants,
including termination of a lease held by both defendants and
continuing money damages, the relief to be granted shall await
disposition of the action as against defendant Steven Lawrence"
In the same February 12, 2024 decision, the court denied
plaintiff's motion (seq. no. 011) for a money judgment. While
the court held that "in light of the court's August 16, 2023
order, plaintiff is clearly entitled to recover this sum and any
further unpaid use and occupancy, with interest", the court
denied the motion, without prejudice, to seek that sum and any
further unpaid sums at trial or upon a dispositive motion.
Further, the same justice denied plaintiff's motion (seq.
no. 012) to compel as "moot", reasoning that, since the motion
was filed, Steven Lawrence appeared for his deposition and
"provided some document discovery" (id.}. Further, the court
noted that the January 18, 2024 status conference order directed
Steven Lawrence to comply with additional document discovery
(id.). However, the court cautioned Steven Lawrence that "CPLR
3126 authorizes the court to sanction a party who refuses to
obey an order for disclosure or willfully fails to disclose
information which the court finds ought to have been disclosed,
and that a failure to comply with discovery, particularly after
a court order has been issued, may constitute the dilatory and
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obstructive, and thus contumacious, conduct warranting the
striking of the pleading" (id., citing Kutner v Feiden, Dweck &
Sladkus, 223 AD2d 448, 489 [1st Dept 1998]}.
In accordance with the court's January 18, 2024 status
conference order, plaintiff served its amended document demands
upon Steven Lawrence on February 5, 2024 (see NYSCEF Doc. No.
156, Plaintiff's Amended Set of Document Requests).
Thereafter, plaintiff moved, by notice of motion (seq. no.
013}, to reargue all three motions (seq. nos. 010, 011, 012). On
March 29, 2024, the court (N. Bannon, J.S.C.) denied the motion
in its entirety. Still, the court reiterated its earlier
warnings to Steven Lawrence that his failure to comply with
the court's discovery order of January 18, 2024 ~may result in
an order of preclusion or striking of the answer in its
entirety" (NYSCEF Doc. No. 164, Decision and Order, dated March
29, 2024).
Steven Lawrence did not file a response to plaintiff's
amended document request, nor did he submit a "Jackson
affidavit", by February 20, 2024. To date, Steven Lawrence has
not filed the same.
On May 31, 2024, plaintiff filed a blank note of issue (see
NYSCEF Doc. No. 168). On that same date, plaintiff filed the
instant motion (seq. no. 014}. In said motion, plaintiff seeks
a litany of relief, including, among other things, an order
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striking defendant Steven Lawrence's answer for his failure to
produce document discovery, a default judgment against
defendants, monetary sanctions against defendants, and vacatur
of note of issue.
The court grants the motion, in part, as limited below.
ANALYSIS
Tiffany Lawrence
At the outset, while plaintiff requests this court to
render a default judgment against Tiffany Lawrence, the court
(N. Bannon, J.S.C.) previously granted plaintiff's motion for a
default judgment (seq. no. 010), without opposition, on the
issue of liability (see NYSCEF Doc. No. 157, Decision and Order,
dated February 21, 2024). The court found that, "having failed
to answer, defendant Tiffany Lawrence is deemed to have admitted
all factual allegations in the complaint and all reasonable
inferences that flow from them" (id.) However, the same court
deferred the "issue of money damages . to trial or on
dispositive motion as against defendant Steven Lawrence," in
light of the nature of the relief sought against both defendants
(id.). Accordingly, plaintiff's motion for an "additional"
default judgment against Tiffany Lawrence (NYSCEF Doc. No. 180,
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Plaintiff's Motion Strike, at p 15) is denied as premature as to
the issue of money damages, and duplicative as to the issue of
liability.
Further, plaintiff seeks additional discovery sanctions
against defaulting party Tiffany Lawrence, who has never
participated in this action. Plaintiff's request is denied
the court (N. Bannon, J.S.C.} previously rendered a default
judgment against Tiffany Lawrence, and if Tiffany Lawrence
wishes to participate in this action, then she must first move
to vacate the default judgment (see generally CPLR § 5015 [a]
979 Second Ave. LLC v Chao, 227 AD3d 436 [1st Dept 2024]).
Therefore, plaintiff's request for discovery and/or monetary
sanctions against Tiffany Lawrence is not appropriate at this
time.
Steven Lawrence
Discovery Sanctions
CPLR § 3126 authorizes the court to sanction a party who
"refuses to obey an order for disclosure or willfully fails to
disclose information which the court finds ought to have been
disclosed." The court may prohibit the disobeying party from
supporting or opposing designated claims or defenses, from
161032(2022 EAST DRIVE HOUSING DEVELOPMENT FUND CORPORATION vs. LAWRENCE, Page 12 of 24 STEVEN MET AL Motion No. 014
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producing evidence, or from using certain witnesses; resolve
issues in favor of the moving party; strike pleadings; stay the
proceeding until the order is obeyed; or render a judgment by
default against the disobedient party {see generally CPLR §
3126). The imposition of CPLR § 3126 sanctions "is within the
sound discretion of the court and courts are empowered to make
such orders with regard to the refusal or failure as are just"
(D'Alessandro v Kushner, 83 Misc.3d 1242 [A] [Sup Ct, NY Cnty
2024] citing Gross v Edmer Sanitary Supply Co., 201 AD2d 390
[1st Dept 1994]; CDR Creances S.A.S. v Cohen, 104 AD3d 17, 26-27
[ 1st Dept 2012] [providing that the court is "accorded wide
latitude in determining appropriate sanctions for dilatory
conduct"]}.
The sanction of striking a pleading is a drastic remedy
"justified only when the moving party shows conclusively that
the failure to disclose was willful, contumacious, or in bad
faith" (Roman v City of New York, 38 AD3d 442, 443 [1st Dept
2007]). A failure to comply with discovery, particularly after
a court order has been issued, may constitute "the sort of
dilatory and obstructive, and thus contumacious, conduct
warranting the striking of its answer" (Pigott v J.C. Happy
Garden Corp., 216 AD3d 413 [1st Dept 2023] citing Kutner v
Feiden, Dweck, & Sladkus, 223 AD2d 488, 489 (1st Dept 1996]). A
party's pleading may be stricken where the party repeatedly
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fails to respond adequately to discovery demands or comply with
court orders, and offers no adequate explanation for the failure
to comply (see Vlahos v 422 East 14 th Street Assocs., 60 AD3d 402
[1st Dept 2009] [emphasis added] ; se~ also Pimental v City of
New York, 246 AD2d 467 [1st Dept 1998]) . Further, the "striking
of a pleading is warranted where the conduct of the offending
party 'frustrates the disclosure scheme provided by the CPLR'"
(CDR Creances S.A.S., 104 AD3d at 27), thereby delaying the
discovery process (see Helms v Gangemi, 265 AD2d 203, 204 [1st
Dept 1999]).
Upon a review of the instant motion, 3 the court finds that
plaintiff has satisfied its burden that Steven Lawrence's
failure to comply with both plaintiff's discovery demands and
court-ordered discovery deadlines was willful and in bad faith. 4
3 Given plaintiff previously filed a motion to compel (seq. no. 012), which the court (N. Bannon, J.S.C.) held was "largely mootn by virtue of the court holding a status conference and issuing a resulting order directing Steven Lawrence to provide additional document discovery and Tiffany Lawrence to appear for a deposition, plaintiff was not obligated to move to compel a second time (see NYSCEF Doc. No. 157, Decision and Order, dated February 12, 2024; A.E.C. Consulting & Expediting, Inc. v Vella, 176 AD3d 496 [1st Dept 2019] [holding that plaintiffs were not obligated to move to compel a second time given the court's familiarity with the discovery dispute from plaintiff's prior motion to compel]). Steven Lawrence failed to produce the additional documents ordered by the court, and Tiffany Lawrence failed to appear for her deposition. Therefore, it would have been futile, and a waste of judicial resources, for plaintiff to file a second motion to compel prior to the filing of the instant motion (§~~ ELRAr;' LLC v Feldman, 67 Misc.3d 1215[A] [Sup Ct, NY Cnty 2020] [holding "there is no merit to defendant's argument that it would be premature to strike his answer here because plaintiff did not first to compel . . . plaintiff could readily have concluded that moving to compel would accomplish little beyond wasting time and resources, both its own and those of the courtu]). 4 Although plaintiff did not submit an affirmation of good faith in support of its motion as required by 22 NYCRR § 202.7(c), the record before this court establishes that plaintiff's counsel attempted, both in and out of court, to 161032/2022 EAST DRIVE HOUSING DEVELOPMENT FUND CORPORATION vs. LAWRENCE, Page 14 of 24 STEVEN M ET AL Motion No. 014
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First, it is evident that Steven Lawrence only complies
with plaintiff's discovery demands when plaintiff expends its
time and resources to seek judicial intervention -- despite
plaintiff serving five deposition notices upon Steven Lawrence
over the course of approximately 11 months, he did not appear
for deposition until after plaintiff filed its motion (seq. no.
012) to compel (see NYSCEF Doc. Nos. 7, 66, 74, 125, 126,
Notices of Deposition, dated January 12, 2023, June 2, 2023,
June 20, 2023, September 29, 2023, and November 1, 2023). And,
it was only after plaintiff filed the same motion to compel
which was filed six months after plaintiff served its first set
of document requests upon Steven Lawrence -- that Steven
Lawrence provided "some document discovery" in response to such
(NYSCEF Doc. No. 157, Decision and Order, dated February 12,
2024 [emphasis added]).
Even then, Steven Lawrence's level of cooperation with the
discovery process is minimal. Plaintiff alleges, and Steven
Lawrence does not dispute, that though Steven Lawrence appeared
for his deposition, he refused to answer "almost any questions"
resolve the outstanding discovery issues (see NYSCEF Doc. No. 179, Affirmation in Support of Plaintiff's Motion, at 17-19). As such, "any further attempt to resolve the dispute non-judicially would have been futile", and plaintiff's failure to comply with 22 NYCRR § 202.7(c) is excused (Loeb v Assara New York I L.P., 118 AD3d 457, 458 [1st Dept 2014] citing Northern Leasing Sys., Inc. v Estate of Turner, 82 AD3d 490, 490 [1st Dept 2011]; Saravullo v Tillotson, 132 AD3d 1399, 1400 [4th Dept 2015]).
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(see NYSCEF Doc. No. 180, Plaintiff's Memorandum in Support of
Motion 014) . Further, the court (N. Bannon, J.S.C.), seemingly
unsatisfied with the sufficiency of documents Steven Lawrence
provided in response to plaintiff's document requests, set
court-ordered discovery deadlines, and directed Steven Lawrence
to respond to plaintiff's amended document requests by February
20, 2024, or produce a "Jackson affidavit" (see NYSCEF Doc. No.
155, Status Conference Order, dated January 18, 2024; see also
Jackson v City of New York, 185 AD2d 768 [1st Dept 2022])
Steven Lawrence's lackadaisical approach to plaintiff's
discovery demands and deposition notices demonstrates a "pattern
of willful non-compliance" {Gutierrez v Bernard, 267 AD2d 65, 66
[1st Dept 1999]; see Youni Gems Corp. v Bassco Creations Inc.,
70 AD3d 454 [1st Dept 2010]) .
In its February 12, 2024 decision and order, the court,
ostensibly aware of Steven Lawrence's history of non-compliance
with plaintiff's discovery demands, took the opportunity to warn
Steven Lawrence of the potential consequences he faced for
failing to comply with the court-ordered discovery deadlines
(see NYSCEF Doc. No. 157, Decision and Order, dated February 12,
2 024) . Specifically, the court emphasized that it is
authorized, pursuant to CPLR § 3126, to sanction a party who
refuses to obey a court order for disclosure, and that his
failure to comply may constitute the "dilatory and obstructive
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conduct warranting the striking of the pleading" (NYSCEF Doc.
No. 157, Decision and Order, dated February 12, 2024, citing
Kutner, 223 AD2d at 489) The court again reiterated this
warning in its March 29, 2024 decision on plaintiff's motion
(seq. no. 013) to renew and reargue (see NYSCEF Doc. No. 164,
Decision and Order, dated March 29, 2024 [holding that Steven
Lawrence's failure to comply with the court's discovery order of
January 18, 2024 "may result in an order of preclusion or
striking of the answer in its entirety"]).
Unsurprisingly, Steven Lawrence did not heed the court's
warnings and failed to comply with the court's January 18, 2024
order. Steven Lawrence did not respond to plaintiff's amended
document request by February 20, 2024, nor did he produce a
Jackson affidavit (see NYSCEF Doc. No. 156, Plaintiff's Amended
Set of Document Requests, dated February 5, 2024; see also
NYSCEF Doc. No. 179, Affirmation in Support of Plaintiff's
Motion) . In fact, Steven Lawrence has note-filed a single
document in this proceeding since August 29, 2023 (see NYSCEF
Doc. No. 92, Defendant's Affirmation in Opposition to
Plaintiff's Motion seeking a Money Judgment). Despite the court
providing Steven Lawrence with ample opportunity to correct his
shortcomings, he chose not to comply.
Therefore, the court finds that Steven Lawrence's failure
to comply with the court's January 18, 2024 order, despite two
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subsequent warnings of the potential consequences he faced,
coupled with his utter disregard for plaintiff's discovery
demands, is the very type of dilatory and obstructive conduct
"sufficient to warrant the 'drastic' sanction of striking [his]
answer" (see Asim v City of New York, 117 AD3d 655 [1st Dept
2014] ) . Steven Lawrence's approach has frustrated the
disclosure scheme provided by the CPLR and significantly delayed
the discovery process.
Having found that Steven Lawrence's conduct was dilatory
and obstructive, the burden shifts to Steven Lawrence to
establish a reasonable excuse for his failure to comply with the
court's January 18, 2024 order (see Silverio v Arvelo, 103 AD3d
401 [1st Dept 2013]). Steven Lawrence has not established a
reasonable excuse for his failure to adhere to the court-ordered
discovery deadlines. Indeed, the motion is unopposed, and no
excuse or explanation -- reasonable or otherwise -- has been set
forth. Steven Lawrence has essentially ceased any substantive
participation in the instant action.
The court is cognizant of the significance of striking
Steven Lawrence's answer, and does not reach this decision
lightly. However, the court is unwilling to reward Steven
Lawrence for his repeated failures to participate in the
discovery process. In consideration of the totality of the
circumstances the court is presented with here, the court is
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justified in striking Steven Lawrence's answer pursuant to CPLR
§ 3126 (3) (see Elias v City of New York, 87 AD3d 513 [1st Dept
2011] (holding that "the history of defendant's untimely,
unresponsive and lax approach to complying with the court's
previous orders warrants the striking of defendant's answer"])
Though plaintiff requests the court to impose additional
sanctions upon Steven Lawrence for Tiffany Lawrence's failure to
appear for her April 2, 2024 deposition, the court is not
prepared to do so. "A party cannot be compelled to produce a
witness for deposition not within its control" (Placede v City
of New York, 210 AD2d 18, 19 [1st Dept 1994]; Wheeler v New York
City Transit Auth., 270 AD2d 104 [1st Dept 2000]). Plaintiff
has submitted no evidence to demonstrate that Tiffany Lawrence
is within Steven Lawrence's control. Accordingly, the court
will not impose sanctions upon Steven Lawrence for Tiffany
Lawrence's failure to appear for her April 2, 2024 deposition.
Accordingly, the court finds that the striking of Steven
Lawrence's answer is "commensurate with the nature and extent of
his disobedience" in failing to cooperate with the discovery
process and the January 18, 2024 court order, (see Christian v
City of New York, 269 AD2d 135 [1st Dept 2000]), and his answer
is stricken in its entirety.
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Additional Sanctions
In addition to the discovery sanctions sought, plaintiff
also seeks monetary sanctions pursuant to CPLR §§ 3126, 5104,
and 5251 for Steven Lawrence's failure to comply with the
court's (N. Bannon, J.S.C.) interim order dated August 16, 2023,
which requires Steven Lawrence to pay ongoing use and occupancy
of $1,628.00 monthly (see NYSCEF Doc. No. 89, Interim Order on
Motion, dated August 16, 2023). However, without citing to any
statutory authority or supporting case law, plaintiff requests
"entry of a default judgment against Steven Lawrence for
ignoring Judge Bannon's order to pay ongoing use and occupancy."
Nonetheless, the court will address this request.
CPLR § 3126 is inapplicable to Steven Lawrence's failure to
comply with the court's August 16, 2023 order to pay use and
occupancy. CPLR § 3126 is a mechanism for seeking discovery
sanctions only, and the court's August 16, 2023 order is not a
discovery order.
CPLR § 5104 makes available the contempt penalty as an
enforcement device for any "interlocutory or final judgment or
order" that is not enforceable under Article 52 of the CPLR
{enforcement of a money judgment) or CPLR § 5102 (enforcement of
an award of possession of real property or chattel). Similarly,
CPLR § 5251 provides that "refusal or willful neglect of any
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person to obey a subpoena or restraining notice issued, or order
granted, pursuant to this title; false swearing upon an
examination or in answering written questions; and willful
defacing or removal of a posted notice of sale before the time
fixed for sale, shall each by punishable as contempt of court"
(emphasis added).
Though plaintiff does not request a finding of contempt
against Steven Lawrence, if, in fact, plaintiff is seeking such,
then the instant motion papers are procedurally deficient to
seek such relief (see generally CPLR §§ 5104, 5251; see also
Judiciary Law§ 750-781). Additionally, though it appears that
plaintiff may have misstated the sections of the CPLR it
intended to rely upon, plaintiff's motion papers are devoid of
any substantive arguments as to the court's authority to issue
sanctions against Steven Lawrence pursuant to either CPLR §§
5104 or 5251 for his failure to pay monthly use and occupancy.
Accordingly, the court declines to issue any sanctions
against Steven Lawrence -- for a default judgment or otherwise -
- pursuant CPLR §§ 3126, 5104, or 5251 for his failure to comply
with the court's August 16, 2023 order.
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Monetary Sanctions
Finally, the court addresses plaintiff's request for
monetary sanctions pursuant to 22 NYCRR § 130-1.1 to the extent
of awarding it attorneys' fees related to the filing of the
instant motion.
The Rules of the Chief Administrator of the Courts, 22
NYCRR § 130-1.l(a), grants the court discretion to award costs
for actual expenses that were reasonably incurred, as well as
reasonable attorney's fees, for frivolous conduct. "Conduct is
frivolous if it is completely without merit in law • I
undertaken primarily to delay or prolong the resolution of
litigation, or to harass or maliciously injure another; or
asserts material factual statements that are false" (22 NYCRR §
130-1.1 [c]}.
Here, the court declines to reach the merits of this
request as it is substantively defective. Plaintiff fails to
submit any itemized legal invoices reflecting the attorneys'
fees charged, or an affirmation from counsel's law firm
describing the nature of the attorneys' fees incurred, in what
amounts, or for what period (see Frankel v 71st Street Lexington
Corp., 221 AD3d 528 [1st Dept 2023]; Strauss v Strauss, 171 AD3d
596, 597-98 [1st Dept 2019]). Accordingly, the request for
attorneys' fees pursuant to 22 NYCRR § 130-1.1 is denied.
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Vacate Note of Issue
Plaintiff moves to vacate note of issue pursuant to 22
NYCRR § 202. 21 (e) . Pursuant to 22 NYCRR § 202. 21 (e), "within 20
days after service of a note of issue and certificate of
readiness, any party to the action or special proceeding may
move to vacate the note of issue, upon affidavit showing in what
respects the case is not ready for trial" {see Schroeder v IESI
NY Corp., 24 AD3d 180 [1st Dept 2005]).
The note of issue filed by plaintiff is completely blank,
and is not accompanied by a certificate of readiness as required
by 22 NYCRR § 202.2l(e) (see NYSCEF Doc. No. 168, Note of Issue
dated May 31, 2024). Plaintiff filed the blank note of issue
simultaneously with the instant motion (seq. no. 014) for
sanctions. While the court appreciates plaintiff's attempt to
adhere to the note of issue filing deadline (see NYSCEF Doc. No.
155, Status Conference Order), the filing of a blank note of
issue without a certificate of readiness is a nullity.
In any event, plaintiff timely moves to vacate the note of
issue, and because plaintiff has demonstrated a concerted effort
to comply with the court's deadlines, with little to no
cooperation from defendants, plaintiff's unopposed application
to vacate the note of issue is granted.
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Accordingly it is,
ORDERED that plaintiff EAST DRIVE HOUSING DEVELOPMENT FUND
CORPORATION'S motion (seq. no. 014) for sanctions is granted, in
part, to the extent that defendant STEVEN M. LAWRENCES's answer
is stricken in its entirety, and is otherwise denied; and it is
further
ORDERD that plaintiff EAST DRIVE HOUSING DEVELOPMENT FUND
CORPORATION's motion (seq. no. 014) to vacate note of issue is
GRANTED; and it is further
ORDERED that parties shall file note of issue by February
10, 2025; and it is further
ORDERED that plaintiff EAST DRIVE HOUSING DEVELOPMENT FUND
CORPORATION shall serve defendants with the decision and order
with notice of entry within ten days of such entry; and it is
further
ORDERED that the parties shall appear for a virtual status
conference on January 8, 2025 at 11:00 A.M. in Part 42.
THIS CONSTITUTES THE DECISION AND ORDER OF THIS COURT.
CHECK ONE: CASE DISPOSED □ NON-FINAL: DISPOSITION GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION:
CHECK IF APPROPRIATE: Fl SETTLE ORDER
INCLUDES TRANSFER/REASSIGN SUBMIT ORDER
FIDUCIARY APPOINTMENT □ REFERENCE
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