Gerasimowicz v. Aslanis

2024 NY Slip Op 30384(U)

• Court: New York Supreme Court, New York County
• Decided: February 1, 2024
• Status: Unpublished

Opinion

Gerasimowicz v Aslanis 2024 NY Slip Op 30384(U) February 1, 2024 Supreme Court, New York County Docket Number: Index No. 654322/2013 Judge: Andrea Masley 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. 654322/2013 NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 02/01/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 48 ----------------------------------------------------------------------------------- X

WALTER V GERASIMOWICZ, INDEX NO. 654322/2013

Plaintiff, MOTION DATE N/A - V - MOTION SEQ. NO. 008 PANTELIS ASLANIS, GEORGIA PANOS ASLANIS, PANAYIOTTA DOUMAZIOS, RITA GIAMPILIS, SPIRO KITOVAS, ANDREAS SAVVIDES, GEORGE NIKOLOS, DECISION+ ORDER ON GEORGE DELIS, GEORGE RODAS, CONSTANTINE MOTION MEGARIS, AB CAPITAL CORP., ASTORIA FEDERAL SAVINGS BANK, DA CONTRACTING, TRIDENT CONSTRUCTION CORP., TPG CONTRACTING CORP., TPG ELECTRIC CORP., FIRST CENTRAL ELECTRIC CO. INC., THE SITRIX FUND, RODEL ELECTRICAL CONTRACTORS, INC., BARE CONTRACTING, INC., and MEGARIS ELECTRICAL CONTRACTING CORP.

Defendants. ----------------------------------------------------------------------------------- X

HON. ANDREA MASLEY:

The following e-filed documents, listed by NYSCEF document number (Motion 008) 212,213,214,215, 216,217,218,219,220,221,222,223,224,225,226,227,228,229,230,231,232,233,234 were read on this motion to/for PRECLUDE

Upon the foregoing documents, it is

For the reasons stated on the record on January 23, 2024, defendants' motion

sequence number 008 is granted.

CPLR 3101 (a) provides "there shall be full disclosure of all evidence material and

necessary in the prosecution or defense of an action." "This 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." ( Spectrum

Sys. Intern. Corp. v Chem. Bank, 78 NY2d 371, 376 [1991] [citation omitted].) The

Commercial Division Rules and Part 48's procedures implement this philosophy. (22

654322/2013 GERASIMOWICZ, WALTER V vs. ASLANIS, PANTELIS Page 1 of4 Motion No. 008

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NYCRR § 202.37 [Scheduling Witnesses]; Commercial Division Rule 32; Part 48 Trial

Procedures Rule 3.)

This matter is going to trial with a jury from June 17 to 28, 2024.

Plaintiff is barred from calling seven witnesses -- defendants' employees or

former employees (NYSCEF 234, Newman aff ,i15) - because he failed to disclose the

names of those witnesses during discovery in this 2013 case when he was specifically

and repeatedly asked to identify witnesses. (NYSCEF 66, December 19, 2018 Notice

for Discovery and Inspection ,I61; see also NYSCEF 67, December 19, 2018

Interrogatories.) Plaintiff's invitation to defendants to take the depositions of the seven

undisclosed witnesses is rejected as the court will not reward plaintiff's serial failure to

comply with discovery orders. (NYSCEF 58, Supplemental Decision and Order [mot.

seq. 002] [granting counsel's request to be relieved as counsel to plaintiff and counsel

directed to turnover box of documents to plaintiffj; NYSCEF 59, August 14, 2018 2 PC

[demands to be served by October 9, 2018 and responses by December 4, 2018;

depositions by February 28, 2019; plaintiff referred to City Bar Legal Referral Service to

engage an attorney]; 3 NYSCEF 74, March 7, 2019 4 Order [directing plaintiff to file

motion for order directing prior counsel to turn over 26 boxes of documents and

directing plaintiff to respond to defendants' demands]; NYSCEF 75, June 5, 2019 5

1 "Identify all individuals or witnesses whom you believe have personal knowledge of the

actions, events and circumstances described in the Complaint, and provide their full name, address and telephone numbers, along with a summary of what facts and knowledge you believe they have." 2 August 14, 2018 preliminary conference held. 3 November 30, 2018 conference held. 4 March 7, 2019 conference held. 5 June 5, 2019 conference held. 654322/2013 GERASIMOWICZ, WALTER V vs. ASLANIS, PANTELIS Page 2 of 4 Motion No. 008

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Order [plaintiff failed to comply with March 7, 2019 order]; NYSCEF 77, August 13,

2019 6 Order [case dismissed unless plaintiff appears for deposition]; 7 NYSCEF 78,

October 7, 2019 8 Order [plaintiff failed to comply with court order and failed to appear

for conference; defendants directed to move for dismissal]; NYSCEF 146, October 29,

2020 Decision and Order [mot seq no 005] [denying defendants' motion to dismiss for

failure to comply with discovery as long as plaintiff complies with the schedule in the

order]; NYSCEF 151, November 12, 2020 Order [explaining why plaintiff waived his

right to discovery]; 9 NYSCEF 193, July 26, 2021 Decision and Order [mot seq no 006]

[denial of sanctions; new discovery set with note of issue deadline]; NYSCEF 197,

August 10, 2022 Order [all depositions not completed are waived and directing plaintiff

to file the note of issue again].) 10 There must be consequences for such flagrant

disregard for court orders. Plaintiff's excuse that he just learned of these witnesses

while he was preparing for trial is concerning to the court since plaintiff has the burden

of proof: How did plaintiff intend to prove his case? (Daniels v NY City Tr. Auth., 171

AD3d 601, 602-603 [1st Dept 2019] [precluding two witnesses proper where defendant

"fail[ed] to provide a reasonable explanation for its failure to disclose two of the

witnesses earlier in response to discovery demands".])

6 August 13, 2019 conference held where plaintiff's new counsel appeared. 7 On September 1, 2019, plaintiff served partial responses. (NYSCEF 213, Robert L. Camaj, Esq., attorney for Delis and Radel defendants.) 8 October 8, 2019 conference held. No appearance by plaintiff or his attorney. 9 Plaintiff's counsel served a Jackson affidavit dated November 16, 2020. (NYSCEF 150.) March 15, 2021 conference held. 1 ° Conferences were also held on August 15, 2022, May 4, 2023 and June 6, 2023. 654322/2013 GERASIMOWICZ, WALTER V vs. ASLANIS, PANTELIS Page 3 of 4 Motion No. 008

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On August 15, 2022, plaintiff filed a note of issue and certificate of readiness

even though his deposition was not complete; two defendants were scheduled to take

his deposition, but that never occurred. (NYSCEF 198, Note of Issue.) Accordingly,

they have until February 29, 2024 to complete plaintiff's deposition without repeating

any questions already asked.

Plaintiff objects to defendants' motion because the CPLR does not require him to

disclose witnesses. The parties were required by Part 48 Trial Procedure 3A11 to

disclose their witnesses at the court's trial scheduling conference on June 6, 2023.

(See also 22 NYCRR § 202.37 [Scheduling Witnesses]; Commercial Division Rule 32.)

At argument on this motion, the court directed defendants to comply with Rule 3A

which they did. (NYSCEF 235, 236, and 237.)

Accordingly, it is

ORDERED that defendants' motion is granted.

2/1/2024 DATE ANDREA MASLEY, J.S.C. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

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

11 "The parties shall send a schedule of witnesses, identifying all witnesses, their addresses, how long each witness is projected to testify, on direct, cross-examination, and re-direct, to the court pursuant to Part Procedure 2 (A), 24 hours prior to the Trial Scheduling Conference, otherwise the Trial Scheduling Conference will be cancelled." 654322/2013 GERASIMOWICZ, WALTER V vs. ASLANIS, PANTELIS Page4 of 4 Motion No. 008

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