McWilliams v. Empire Agric. Sys., LLC
This text of 2025 NY Slip Op 34409(U) (McWilliams v. Empire Agric. Sys., LLC) is published on Counsel Stack Legal Research, covering New York Supreme Court, New York County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
McWilliams v Empire Agric. Sys., LLC 2025 NY Slip Op 34409(U) November 18, 2025 Supreme Court, New York County Docket Number: Index No. 655727/2023 Judge: Joel M. Cohen 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 11/18/2025 04:38 PM INDEX NO. 655727/2023 NYSCEF DOC. NO. 144 RECEIVED NYSCEF: 11/18/2025
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M -----------------------------------------------------------------------------------X DAVID G. MCWILLIAMS, VDCA/NY LLC, INDEX NO. 655727/2023
Plaintiffs, MOTION DATE 07/08/2025 -v- MOTION SEQ. NO. 007 EMPIRE AGRICULTURAL SYSTEMS, LLC, ADAM VICTOR, GAS ALTERNATIVE SYSTEMS, INC., G.A.S. ORANGE DEVELOPMENT, INC., JEFFREY GURAL, DECISION + ORDER ON FREDERICO POLSINELLI, JOHN DOE MOTION Defendants. -----------------------------------------------------------------------------------X
HON. JOEL M. COHEN:
The following e-filed documents, listed by NYSCEF document number (Motion 007) 134, 135, 136, 137, 138, 139, 140, 141, 142, 143 were read on this motion to STRIKE PLEADINGS .
David G. McWilliams and VDCA/NY LLC (together, “Plaintiffs”), individually and on
behalf of Empire Agricultural Systems, LLC (“Empire”), move for an Order pursuant to CPLR
3126 (i) striking the Verified Answer filed by Defendants, Adam Victor (“Victor”), Gas
Alternative Systems, Inc. (“Gas Alternative”), and G.A.S. Orange Development, Inc. (“Gas
Orange” and, collectively, “Defendants”); and (ii) awarding Plaintiffs their costs and fees
incurred in bringing the within motion. For the following reasons Plaintiffs’ motion is denied
with respect to striking the answer but granted with respect to awarding fees and costs.
As relevant here, on March 19, 2025, Plaintiffs moved pursuant to CPLR 3124 to compel
Defendants to provide complete and proper responses to Plaintiffs’ discovery demands (Mot.
Seq. 006). Defendants did not oppose that motion. By Decision and Order dated June 18, 2025,
the Court granted Plaintiffs’ motion and ordered Defendants to provide complete and proper
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responses to Plaintiffs’ discovery demands within fourteen (14) days of the date thereof—or by
July 2, 2025 (NYSCEF 131).
On July 8, 2025, Plaintiffs filed the present motion, asserting that Defendants failed to
cure the deficiencies in their discovery responses within the time set forth in the Court’s order
(see NYSCEF 134-136; NYSCEF 137 [Urbano Affirm] ¶24). Pursuant to CPLR 2214(b),
Defendants’ opposition to the motion was due no later than July 18, 2025. Defendants did not
oppose the motion on or before July 18, 2025.
On July 24, 2025, Plaintiffs submitted a reply affirmation updating the Court that the
Defendants provided revised discovery responses seven (7) days after the deadline set forth in
the Court’s Order, on July 9, 2025 which was the end date for all discovery (id. ¶16). Plaintiffs
contend that the revised discovery responses remain deficient (id.).
Defendants filed an affirmation in opposition on the same date Plaintiffs submitted their
reply. In their opposition, Defendants attribute the delay in providing the revised discovery
responses to the July 4 holiday weekend (NYSCEF 143 [Rodriguez Affirm] ¶ 4). Although not
an adequate excuse, Defendants contend that although their responses were submitted after the
July 2, 2025 deadline, they were still provided before the end date for all discovery (id.).
Defendants also filed a letter informing the Court that their delay in opposing the present motion
was due to a medical emergency involving Defendants’ counsel (NYSCEF 142).
DISCUSSION
CPLR 3126 provides, in pertinent part, that if a party “refuses to obey an order for
disclosure . . . the court may make such orders . . . as are just,” including, among other things,
“an order striking out pleadings or parts thereof.” (CPLR 3126[3]). “CPLR 3126 permits the
court to ‘make such orders . . . as are just,’ and it may, in an appropriate case, determine that the
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pattern of noncompliance is so significant that a severe sanction is appropriate. Such a
determination should not be set aside absent a clear abuse of discretion” (Fish & Richardson,
P.C. v Schindler, 75 AD3d 219, 222 [1st Dept 2010]; see also Five Star Electric Corp. v Trustees
of Columbia Univ., 238 AD3d 511 [1st Dept 2025] [“We give ‘substantial deference’ to the
motion court's ‘considerable discretion’ to impose penalties pursuant to CPLR 3126, and ‘absent
clear abuse,’ will not disturb such a penalty”]).
Here, while Plaintiffs have made a showing that Defendants have failed to timely comply
with discovery deadlines and the Court’s discovery orders, the Court does not find that this
conduct warrants the “severe sanction” of striking Defendants’ Answer. “Actions should be
resolved on their merits whenever possible, and the drastic remedy of striking a pleading or the
alternative remedy of precluding evidence should not be employed without a clear showing that
the failure to comply with court-ordered discovery was willful and contumacious” (Rector v City
of New York, 174 AD3d 660, 660-61 [2d Dept 2019]). Ultimately, Defendants’ delay in
complying with the Court’s June 2025 Order was only a matter of days—and their responses
were provided before the deadline for all discovery. Accordingly, in light of the Court’s
preference to decide cases on the merits, the motion to strike is denied.
There should, however, be consequences for Defendants’ dilatory behavior, which has
led to two otherwise unnecessary and wasteful discovery-related motions. Pursuant to the
parties’ stipulation embodied in Section VIII of the Preliminary Conference Order (NYSCEF
73), and in the exercise of the Court’s discretion, Plaintiff is awarded recovery of its reasonable
fees and expenses incurred in connection with Motion Sequences 006 and 007.
Accordingly, it is
655727/2023 MCWILLIAMS, DAVID G. ET AL vs. EMPIRE AGRICULTURAL SYSTEMS, LLC ET Page 3 of 4 AL Motion No. 007
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ORDERED that Plaintiffs’ Motion to Strike the Pleadings is GRANTED IN PART
AND DENIED IN PART such that (i) the branch of the motion seeking attorneys’ fees and
costs is granted, and (ii) the branch of the motion seeking to strike Defendants’ pleadings is
denied, and; it is further
ORDERED that Plaintiffs are awarded attorneys’ fees and costs reasonably incurred in
connection with Motion Sequences 006 and 007; it is further
ORDERED that Plaintiffs may submit an application for attorneys’ fees and costs with
supporting documentation within fourteen (14) days of the date of this Order; and Defendants
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