Listokin v City of New York 2024 NY Slip Op 33645(U) October 14, 2024 Supreme Court, New York County Docket Number: Index No. 155224/2020 Judge: Hasa A. Kingo 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 10/15/2024 03:09 P~ INDEX NO. 155224/2020 NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 10/15/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. HASA A. KINGO PART 05M Justice ----------------------------------------------------------------- ----------------X INDEX NO. 155224/2020 STANLEY LISTOKIN, MOTION DATE 09/09/2024 Plaintiff, MOTION SEQ. NO. 003 - V -
THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, NEWYORK CITY DEPARTMENT OF PARKS AND RECREATION, NEW DECISION + ORDER ON YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, NEW YORK CITY DEPARTMENT OF MOTION DESIGN AND CONSTRUCTION
Defendant. ------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 45, 46, 47, 48, 49, 50, 51, 52, 53,54, 55,56,57,58, 59,60,61,62,63,64,65,66, 67,68,69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81 were read on this motion to STRIKE PLEADINGS
Upon the foregoing documents, the court issues the following decision and order:
BACKGROUND AND PROCEDURAL HISTORY
This case arises from an incident that occurred on April 29, 2019, when Plaintiff, Stanley
Listokin ("Plaintiff'), an 83-year-old business professional, was riding his bicycle in Central Park.
Plaintiff alleges that as the pathway ahead curved, its surface abruptly became unpaved and mis-
leveled, causing him to be violently thrown to the ground, resulting in severe injuries, including
injuries to his face, rotator cuff, and extremities. Plaintiff claims that the hazardous condition was
due to defendants' failure to properly maintain the pathway following a resurfacing project.
The present motion is brought pursuant to CPLR §3124, seeking to compel the City ofNew
York ("the City") to comply with discovery requests, which have been outstanding since May 9,
2023, and court orders entered on December 12, 2023, and May 20, 2024. Plaintiff separately seeks
155224/2020 LISTOKIN, STANLEY vs. THE CITY OF NEW YORK Page 1 of 6 Motion No. 003
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an order striking the City's answer pursuant to CPLR §3126 or, alternatively, precluding the City
from offering evidence at trial. The City opposes the motion, asserting that it has responded to all
outstanding discovery requests and that Plaintiff failed to engage in a good faith effort to resolve
the dispute prior to filing this motion.
Plaintiffs allegations are corroborated by a series of good faith letters sent to the City and
two court orders directing compliance with discovery. Despite this, Plaintiff contends that the City
unilaterally adjourned depositions and failed to produce critical discovery materials, severely
prejudicing Plaintiffs ability to prosecute this case.
DISCUSSION
It is well-settled law that a party's failure to comply with discovery obligations can result
m severe sanctions, including striking a party's pleading, precluding evidence, or imposing
monetary penalties (see Figdor v. City of New York, 33 AD3d 560 [1st Dept 2006]). In this case,
the City has exhibited a persistent pattern of non-compliance with its discovery obligations.
Despite two court orders mandating discovery, the City has repeatedly failed to respond fully,
delaying the resolution of this matter.
While the sanction of striking a party's pleading is a harsh remedy, it is warranted where
there has been a clear showing of willful and contumacious behavior (Kihl v. Pfeffer, 94 NY2d
118 [1999]). The court recognizes that striking a party's answer is a grave sanction, one that should
only be imposed when a party's failure to fulfill its discovery obligations clearly falls within the
bounds of this established legal standard.
The record in this case reveals a persistent and unjustifiable pattern of delay by the City in
meeting its discovery obligations. At oral argument on October 15, 2024, the City's responses to
this court's inquiries were wholly unpersuasive, demonstrating a troubling lack of priority in
155224/2020 LISTOKIN, STANLEY vs. THE CITY OF NEW YORK Page 2 of 6 Motion No. 003
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addressing the discovery at hand. Most notably, the City openly admitted that the deposition dates
it had stipulated to on May 14, 2024, failed to proceed as scheduled-without providing any good
cause for this lapse. This is particularly egregious given that Plaintiff's counsel had long since
furnished all necessary medical records to facilitate Plaintiff's deposition. The City's ongoing non-
compliance has obstructed the resolution of a case that has languished for over five years, thereby
imposing undue and unjust prejudice upon Plaintiff, who, at 83 years old, is entitled to nothing
less than a prompt and fair resolution of his claims.
Plaintiff has documented a series of efforts to resolve the discovery disputes at issue in
good faith, starting with his notice of discovery and inspection served on May 9, 2023. Following
the City's failure to respond, Plaintiff sent no less than three good faith letters on October 15, 2023,
November 10, 2023, and August 5, 2024, requesting compliance with the outstanding discovery.
The City ignored each of these letters, violating its obligations under CPLR §3120 and §3101,
which mandate full disclosure of all material and necessary information to prosecute the case.
Further, the court issued two clear directives to the City to comply with its discovery
obligations. The first order, entered on December 12, 2023, required the City to respond to
Plaintiff's May 9, 2023, discovery requests within 45 days. The second order, dated May 20, 2024,
reiterated the City's obligation and warned that non-compliance could result in sanctions,
including striking the City's answer. Despite these explicit orders, the City has continued to
disregard its discovery duties. As noted in Figdor v. City of New York, 33 AD3d 560, 561 (1st
Dept 2006), such recalcitrance in discovery matters "should not escape adverse consequences."
The City's pattern of ignoring court orders and delaying tactics mirrors the behavior condemned
by the courts in Figdor, where the Appellate Division, First Department, urged courts to adopt a
more proactive stance against unjustified discovery delays by the City.
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Moreover, in Reidel v. Ryder TRS, Inc., 13 AD3d 170 (1st Dept 2004), the court held that
willful non-compliance with discovery orders can justify the striking of a pleading. In this case,
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Listokin v City of New York 2024 NY Slip Op 33645(U) October 14, 2024 Supreme Court, New York County Docket Number: Index No. 155224/2020 Judge: Hasa A. Kingo 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 10/15/2024 03:09 P~ INDEX NO. 155224/2020 NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 10/15/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. HASA A. KINGO PART 05M Justice ----------------------------------------------------------------- ----------------X INDEX NO. 155224/2020 STANLEY LISTOKIN, MOTION DATE 09/09/2024 Plaintiff, MOTION SEQ. NO. 003 - V -
THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, NEWYORK CITY DEPARTMENT OF PARKS AND RECREATION, NEW DECISION + ORDER ON YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, NEW YORK CITY DEPARTMENT OF MOTION DESIGN AND CONSTRUCTION
Defendant. ------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 45, 46, 47, 48, 49, 50, 51, 52, 53,54, 55,56,57,58, 59,60,61,62,63,64,65,66, 67,68,69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81 were read on this motion to STRIKE PLEADINGS
Upon the foregoing documents, the court issues the following decision and order:
BACKGROUND AND PROCEDURAL HISTORY
This case arises from an incident that occurred on April 29, 2019, when Plaintiff, Stanley
Listokin ("Plaintiff'), an 83-year-old business professional, was riding his bicycle in Central Park.
Plaintiff alleges that as the pathway ahead curved, its surface abruptly became unpaved and mis-
leveled, causing him to be violently thrown to the ground, resulting in severe injuries, including
injuries to his face, rotator cuff, and extremities. Plaintiff claims that the hazardous condition was
due to defendants' failure to properly maintain the pathway following a resurfacing project.
The present motion is brought pursuant to CPLR §3124, seeking to compel the City ofNew
York ("the City") to comply with discovery requests, which have been outstanding since May 9,
2023, and court orders entered on December 12, 2023, and May 20, 2024. Plaintiff separately seeks
155224/2020 LISTOKIN, STANLEY vs. THE CITY OF NEW YORK Page 1 of 6 Motion No. 003
1 of 6 [* 1] [FILED: NEW YORK COUNTY CLERK 10/15/2024 03:09 P~ INDEX NO. 155224/2020 NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 10/15/2024
an order striking the City's answer pursuant to CPLR §3126 or, alternatively, precluding the City
from offering evidence at trial. The City opposes the motion, asserting that it has responded to all
outstanding discovery requests and that Plaintiff failed to engage in a good faith effort to resolve
the dispute prior to filing this motion.
Plaintiffs allegations are corroborated by a series of good faith letters sent to the City and
two court orders directing compliance with discovery. Despite this, Plaintiff contends that the City
unilaterally adjourned depositions and failed to produce critical discovery materials, severely
prejudicing Plaintiffs ability to prosecute this case.
DISCUSSION
It is well-settled law that a party's failure to comply with discovery obligations can result
m severe sanctions, including striking a party's pleading, precluding evidence, or imposing
monetary penalties (see Figdor v. City of New York, 33 AD3d 560 [1st Dept 2006]). In this case,
the City has exhibited a persistent pattern of non-compliance with its discovery obligations.
Despite two court orders mandating discovery, the City has repeatedly failed to respond fully,
delaying the resolution of this matter.
While the sanction of striking a party's pleading is a harsh remedy, it is warranted where
there has been a clear showing of willful and contumacious behavior (Kihl v. Pfeffer, 94 NY2d
118 [1999]). The court recognizes that striking a party's answer is a grave sanction, one that should
only be imposed when a party's failure to fulfill its discovery obligations clearly falls within the
bounds of this established legal standard.
The record in this case reveals a persistent and unjustifiable pattern of delay by the City in
meeting its discovery obligations. At oral argument on October 15, 2024, the City's responses to
this court's inquiries were wholly unpersuasive, demonstrating a troubling lack of priority in
155224/2020 LISTOKIN, STANLEY vs. THE CITY OF NEW YORK Page 2 of 6 Motion No. 003
2 of 6 [* 2] [FILED: NEW YORK COUNTY CLERK 10/15/2024 03:09 P~ INDEX NO. 155224/2020 NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 10/15/2024
addressing the discovery at hand. Most notably, the City openly admitted that the deposition dates
it had stipulated to on May 14, 2024, failed to proceed as scheduled-without providing any good
cause for this lapse. This is particularly egregious given that Plaintiff's counsel had long since
furnished all necessary medical records to facilitate Plaintiff's deposition. The City's ongoing non-
compliance has obstructed the resolution of a case that has languished for over five years, thereby
imposing undue and unjust prejudice upon Plaintiff, who, at 83 years old, is entitled to nothing
less than a prompt and fair resolution of his claims.
Plaintiff has documented a series of efforts to resolve the discovery disputes at issue in
good faith, starting with his notice of discovery and inspection served on May 9, 2023. Following
the City's failure to respond, Plaintiff sent no less than three good faith letters on October 15, 2023,
November 10, 2023, and August 5, 2024, requesting compliance with the outstanding discovery.
The City ignored each of these letters, violating its obligations under CPLR §3120 and §3101,
which mandate full disclosure of all material and necessary information to prosecute the case.
Further, the court issued two clear directives to the City to comply with its discovery
obligations. The first order, entered on December 12, 2023, required the City to respond to
Plaintiff's May 9, 2023, discovery requests within 45 days. The second order, dated May 20, 2024,
reiterated the City's obligation and warned that non-compliance could result in sanctions,
including striking the City's answer. Despite these explicit orders, the City has continued to
disregard its discovery duties. As noted in Figdor v. City of New York, 33 AD3d 560, 561 (1st
Dept 2006), such recalcitrance in discovery matters "should not escape adverse consequences."
The City's pattern of ignoring court orders and delaying tactics mirrors the behavior condemned
by the courts in Figdor, where the Appellate Division, First Department, urged courts to adopt a
more proactive stance against unjustified discovery delays by the City.
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Moreover, in Reidel v. Ryder TRS, Inc., 13 AD3d 170 (1st Dept 2004), the court held that
willful non-compliance with discovery orders can justify the striking of a pleading. In this case,
the City's conduct demonstrates a disregard for both procedural rules and judicial authority, as it
has not only failed to comply with discovery demands but has also unilaterally adjourned court-
ordered depositions scheduled for April 30, 2024, May 9, 2024, October 2, 2024, and October 9,
2024 without proper cause or justification.
The City's conduct here parallels the egregious delays in Williams v. City of New York,
2010 N.Y. Slip Op. 51615 (Sup. Ct. N.Y. Co. 2010), where the court struck the City's answer due
to repeated violations of discovery orders. In Williams, the court emphasized the City's cavalier
attitude toward its obligations, noting that repeated disregard for discovery deadlines cannot be
tolerated, especially when it hampers the resolution of the case and prejudices the opposing party.
The same is true here. The City's dilatory tactics and its continued refusal to produce the ordered
discovery amount to conduct that undermines the integrity of the judicial process.
Furthermore, the court is especially mindful of Plaintiff's advanced age and the principle
that "justice delayed is justice denied." Plaintiff, who is 83 years old, is entitled to the timely and
expeditious resolution of his claims, as every litigant has a right to his day in court. The delays in
this case, now stretching over five years, cannot be condoned.
Nevertheless, the court recognizes that cases should be resolved on the merits whenever
possible, and striking a party's answer is a remedy oflast resort (Herrera v. City ofNew York, 238
AD2d 475 [2d Dept 1997]). While the City's conduct has been unreasonable, the court believes
that affording the City one final opportunity to comply with its discovery obligations, under threat
of self-executing sanctions, is a fair and measured response at this juncture.
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The City is no different from any other defendant and must be held to the same standard.
Its obligation to comply with discovery orders is unequivocal, and continued non-compliance will
not be tolerated. Should the City fail to substantially comply within thirty (30) days of this decision,
the court will have no other course but to strike the City's answer, as warranted under CPLR §3126.
The City's pattern of non-compliance and its failure to adhere to court-ordered discovery
is intolerable. Plaintiff has made every good faith effort to resolve these issues, but the City has
failed to act responsibly. Given the procedural history, the City is directed to comply with all
outstanding discovery within thirty (30) days, and failure to substantially comply will result in the
striking of its answer. Plaintiffs motion to strike is therefore granted in part, and the City is on
notice that any further delays in compliance will result in the imposition of sanctions.
Accordingly, it is hereby
ORDERED, that Plaintiffs motion is granted to the extent that the City of New York is
directed to produce all outstanding discovery materials outlined below within thirty (30) days of
this order, and failure to do so through documented substantial compliance will result in the
striking of the City's answer; and it is further
ORDERED that the City is directed to provide amended discovery responses to each item
of discovery called for by the Case Scheduling Order ("CSO") in this action (NYSCEF No. 36),
or requested by Plaintiffs Notice and Demands for Discovery dated May 9, 2023 (NYSCEF No.
17), and produce all responsive records in its possession, custody, or control, within thirty (30)
days, and no later than Thursday November 14, 2024; and it is further
ORDERED that to the extent document productions are not fully and thoroughly
completed within thirty (30) days, the City shall file with the court an affidavit from a person of
knowledge (who is not counsel) describing in detail the affirmative steps taken towards
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compliance, such affidavit evincing a plan to fully and thoroughly comply with all provisions of
the CSO and Plaintiff's Notice and Demands for Discovery dated May 9, 2023, and evincing
diligent progress towards that end, and such detailed description of affirmative steps taken
including: the timing of each step, the nature and scope of each step (including the method and/or
parameters of searching, and the custodial source interrogated, e.g. witness or records), the CSO
provisions and/or Plaintiff's Notice and Demands for Discovery dated May 9, 2023 requests each
such step is directed to address; the results or status of each step (i.e. whether a search is complete,
whether responsive documents have been identified, and if so a description of the documents), and
anticipated time of completion (whether document production, or a representation that no
responsive documents exist); and it is further
ORDERED that, within thirty (30) days of the date of this order, the City shall contact
Plaintiff's counsel to reschedule the depositions of both Plaintiff and the City. These depositions
must be scheduled for dates occurring no later than Thursday, January 23, 2024.; and it is further
ORDERED that the parties are directed to obtain the transcript of the oral argument that
took place on Tuesday, October 15, 2024, the substance of which is incorporated by reference,
split the cost, and submit the same to the court upon receipt at sfc-part5-clerk@nycourts.gov and
sfc-part5@nycourts.gov; and it is further
ORDERED that the parties shall appear for a compliance conference at 80 Centre Street,
Room 320, on Tuesday November 19, 2024 at 12:00 PM.
This constitutes the decision and order of the court.
10/14/2024 DATE CHECK ONE: El CASE DISPOSED
GRANTED □ DENIED 0 0 NON-FINAL DISPOSITION
GRANTED IN PART □ OTHER
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