Mendez v Europa Gen. Contr. Corp. 2025 NY Slip Op 30518(U) February 13, 2025 Supreme Court, New York County Docket Number: Index No. 155070/2022 Judge: Mary V. Rosado 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. 155070/2022 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 02/13/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON.MARYV.ROSADO PART 33M Justice ---------------------------------X INDEX NO. 155070/2022 HECTOR MENDEZ, MOTION DATE 06/18/2024 Plaintiff, MOTION SEQ. NO. 002 -v- EUROPA GENERAL CONTRACTING CORP., STELLAR MANAGEMENT LTD, 3430 BWAY OWNER, LLC,MEL DECISION + ORDER ON MANAGEMENT CORP. OBA STELLAR MANAGEMENT MOTION
Defendant. ---------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 67, 68, 69, 70, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81,82, 83, 84, 92, 93, 94, 95 VACATE/STRIKE - NOTE OF ISSUE/JURY were read on this motion to/for DEMAND/FROM TRIAL CALENDAR
Upon the foregoing documents, Plaintiff Hector Mendez's ("Plaintiff') motion to vacate
the note of issue is granted. Defendant Europa General Contracting Corp.' s ("Europa") cross-
motion seeking discovery sanctions or in the alternative compelling Plaintiff to produce certain
discovery is granted in part and denied in part.
I. Background
Plaintiff, who was formerly employed as a superintendent of a building located at 556 West
140th Street, New York, New York, (the "Building") and managed by Defendant Stellar
Management, Ltd. ("Stellar Management"), was allegedly injured while performing work on the
roof of the Building. Plaintiff filed his Note of Issue on March 29, 2024 (NYSCEF Doc. 54). On
the certificate of trial readiness, Plaintiffs counsel stated that despite filing the note of issue, there
remained outstanding discovery related to Plaintiffs work cell phone and bank statements from
Defendants Stellar Management and Europa. Four days before the note of issue was due, Plaintiff
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submitted a letter, via NYSCEF 1, stating that Plaintiff only recently discovered he was in
possession of his work telephone, which purportedly has texts and photographs related to the
incident. However, Plaintiff allegedly cannot access the texts and photographs because only Stellar
Management has the password to unlock the telephone. Plaintiff stated as a result he was not ready
to file the note of issue - yet he proceeded to file the note of issue on March 29, 2024.
Meanwhile, Europa filed a motion for summary judgment on June 11, 2024. 2 A status
conference was held on June 12, 2024, because Plaintiff requested guidance regarding the
procedural status of the case. Defense counsel opposed any further discovery taking place because
the note of issue and a motion for summary judgment had been filed, Plaintiffs request to vacate
the note of issue was untimely, and because Plaintiff had been in possession of the work phone
throughout litigation in contradiction of his prior sworn testimony. Unable to reach any sort of
resolution, and given the fact intensive nature of the dispute, Plaintiff was directed to file the instant
motion so each party could present their positions regarding this case's unique procedural posture.
II. Discussion
As a preliminary matter, although Plaintiffs motion is untimely pursuant to 22 NYCRR §
202.21, the Court will entertain the motion as Plaintiff first attempted to resolve the issues without
Court intervention, and then again attempted to resolve the issues at a conference with the Court
prior to filing this motion. Moreover, Defendants have taken an obstructionist and gamesman-like
approach to resolving this discovery dispute rather than cooperating with Plaintiff to retrieve the
purported text messages and photographs from the work telephone, which if retrievable, may be
dispositive of certain issues in this case. Further, the Court is mindful that there is a strong public
1 Plaintiff did not contact the part-clerk regarding the impending note of issue deadline, nor did Plaintiff provide a hard copy of the letter to the Court. 2 Defendants Stellar Management Ltd., 3430 Bway Owner, LLC, and Mel Management Corp. d/b/a Stellar Management filed their own motion for summary judgment on July 26, 2024 (NYSCEF Doc. 98). 155070/2022 MENDEZ, HECTOR vs. EUROPA GENERAL CONTRACTING CORP. ET AL Page 2 of 5 Motion No. 002
2 of 5 [* 2] INDEX NO. 155070/2022 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 02/13/2025
policy in New York to have cases heard on the merits rather than decided on technicalities (Rosario
v General Behr Corp., 217 AD3d 641 [1st Dept 2023]).
The Court further finds that Plaintiff's failure to disclose the work telephone was not
willful. Plaintiff, who allegedly had his left foot and all his right toes amputated because of the
accident giving rise to this lawsuit, and who was evicted from his New York apartment and forced
to relocate to South Carolina, swears in an affidavit that he did not realize he was in possession of
his work cellphone until March of 2024, as it remained in an unpacked box. Plaintiff's counsel
notified Defendants of the recently discovered telephone and Defendants have seemingly refused
to cooperate in retrieving evidence from that telephone. Nor can Plaintiff's counsel be said to have
waived this discovery as she noted it was outstanding when the note of issue was filed. Moreover,
the case remains on the trial calendar and there is no imminent trial date. Under these
circumstances, and because Plaintiff states the case is not trial ready and the note of issue was only
filed to comply with this Court's order dated January 31, 2024 (NYSCEF Doc. 47), the Court
grants Plaintiff's motion to vacate the note of issue (see, e.g. Ruiz v Park Gramercy Owners Corp.,
182 AD3d 471 [1st Dept 2020]). The parties shall begin immediately cooperating in good faith to
retrieve the relevant texts and photographs from Plaintiff's work telephone. To the extent Plaintiff
seeks bank statements, that request should come in the form of a formal demand for discovery and
inspection, or a deficiency letter, as opposed to an informal request via e-mail.
Europa's cross-motion is granted in part and denied in part. To the extent Europa seeks an
order compelling Plaintiff to produce his work telephone for inspection, and to resubmit for a
deposition regarding the undisclosed contents produced from that work telephone, Europa's cross-
motion is granted. Moreover, to the extent Europa seeks an order from this Court striking
Plaintiff's e-mail request for bank statements, that relief is granted. An informal and imprecise
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request for discovery and inspection via e-mail does not fall under one of the enumerated methods
of obtaining disclosure pursuant to CPLR § 3102.
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Mendez v Europa Gen. Contr. Corp. 2025 NY Slip Op 30518(U) February 13, 2025 Supreme Court, New York County Docket Number: Index No. 155070/2022 Judge: Mary V. Rosado 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. 155070/2022 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 02/13/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON.MARYV.ROSADO PART 33M Justice ---------------------------------X INDEX NO. 155070/2022 HECTOR MENDEZ, MOTION DATE 06/18/2024 Plaintiff, MOTION SEQ. NO. 002 -v- EUROPA GENERAL CONTRACTING CORP., STELLAR MANAGEMENT LTD, 3430 BWAY OWNER, LLC,MEL DECISION + ORDER ON MANAGEMENT CORP. OBA STELLAR MANAGEMENT MOTION
Defendant. ---------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 67, 68, 69, 70, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81,82, 83, 84, 92, 93, 94, 95 VACATE/STRIKE - NOTE OF ISSUE/JURY were read on this motion to/for DEMAND/FROM TRIAL CALENDAR
Upon the foregoing documents, Plaintiff Hector Mendez's ("Plaintiff') motion to vacate
the note of issue is granted. Defendant Europa General Contracting Corp.' s ("Europa") cross-
motion seeking discovery sanctions or in the alternative compelling Plaintiff to produce certain
discovery is granted in part and denied in part.
I. Background
Plaintiff, who was formerly employed as a superintendent of a building located at 556 West
140th Street, New York, New York, (the "Building") and managed by Defendant Stellar
Management, Ltd. ("Stellar Management"), was allegedly injured while performing work on the
roof of the Building. Plaintiff filed his Note of Issue on March 29, 2024 (NYSCEF Doc. 54). On
the certificate of trial readiness, Plaintiffs counsel stated that despite filing the note of issue, there
remained outstanding discovery related to Plaintiffs work cell phone and bank statements from
Defendants Stellar Management and Europa. Four days before the note of issue was due, Plaintiff
155070/2022 MENDEZ, HECTOR vs. EUROPA GENERAL CONTRACTING CORP. ET AL Page 1 of 5 Motion No. 002
1 of 5 [* 1] INDEX NO. 155070/2022 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 02/13/2025
submitted a letter, via NYSCEF 1, stating that Plaintiff only recently discovered he was in
possession of his work telephone, which purportedly has texts and photographs related to the
incident. However, Plaintiff allegedly cannot access the texts and photographs because only Stellar
Management has the password to unlock the telephone. Plaintiff stated as a result he was not ready
to file the note of issue - yet he proceeded to file the note of issue on March 29, 2024.
Meanwhile, Europa filed a motion for summary judgment on June 11, 2024. 2 A status
conference was held on June 12, 2024, because Plaintiff requested guidance regarding the
procedural status of the case. Defense counsel opposed any further discovery taking place because
the note of issue and a motion for summary judgment had been filed, Plaintiffs request to vacate
the note of issue was untimely, and because Plaintiff had been in possession of the work phone
throughout litigation in contradiction of his prior sworn testimony. Unable to reach any sort of
resolution, and given the fact intensive nature of the dispute, Plaintiff was directed to file the instant
motion so each party could present their positions regarding this case's unique procedural posture.
II. Discussion
As a preliminary matter, although Plaintiffs motion is untimely pursuant to 22 NYCRR §
202.21, the Court will entertain the motion as Plaintiff first attempted to resolve the issues without
Court intervention, and then again attempted to resolve the issues at a conference with the Court
prior to filing this motion. Moreover, Defendants have taken an obstructionist and gamesman-like
approach to resolving this discovery dispute rather than cooperating with Plaintiff to retrieve the
purported text messages and photographs from the work telephone, which if retrievable, may be
dispositive of certain issues in this case. Further, the Court is mindful that there is a strong public
1 Plaintiff did not contact the part-clerk regarding the impending note of issue deadline, nor did Plaintiff provide a hard copy of the letter to the Court. 2 Defendants Stellar Management Ltd., 3430 Bway Owner, LLC, and Mel Management Corp. d/b/a Stellar Management filed their own motion for summary judgment on July 26, 2024 (NYSCEF Doc. 98). 155070/2022 MENDEZ, HECTOR vs. EUROPA GENERAL CONTRACTING CORP. ET AL Page 2 of 5 Motion No. 002
2 of 5 [* 2] INDEX NO. 155070/2022 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 02/13/2025
policy in New York to have cases heard on the merits rather than decided on technicalities (Rosario
v General Behr Corp., 217 AD3d 641 [1st Dept 2023]).
The Court further finds that Plaintiff's failure to disclose the work telephone was not
willful. Plaintiff, who allegedly had his left foot and all his right toes amputated because of the
accident giving rise to this lawsuit, and who was evicted from his New York apartment and forced
to relocate to South Carolina, swears in an affidavit that he did not realize he was in possession of
his work cellphone until March of 2024, as it remained in an unpacked box. Plaintiff's counsel
notified Defendants of the recently discovered telephone and Defendants have seemingly refused
to cooperate in retrieving evidence from that telephone. Nor can Plaintiff's counsel be said to have
waived this discovery as she noted it was outstanding when the note of issue was filed. Moreover,
the case remains on the trial calendar and there is no imminent trial date. Under these
circumstances, and because Plaintiff states the case is not trial ready and the note of issue was only
filed to comply with this Court's order dated January 31, 2024 (NYSCEF Doc. 47), the Court
grants Plaintiff's motion to vacate the note of issue (see, e.g. Ruiz v Park Gramercy Owners Corp.,
182 AD3d 471 [1st Dept 2020]). The parties shall begin immediately cooperating in good faith to
retrieve the relevant texts and photographs from Plaintiff's work telephone. To the extent Plaintiff
seeks bank statements, that request should come in the form of a formal demand for discovery and
inspection, or a deficiency letter, as opposed to an informal request via e-mail.
Europa's cross-motion is granted in part and denied in part. To the extent Europa seeks an
order compelling Plaintiff to produce his work telephone for inspection, and to resubmit for a
deposition regarding the undisclosed contents produced from that work telephone, Europa's cross-
motion is granted. Moreover, to the extent Europa seeks an order from this Court striking
Plaintiff's e-mail request for bank statements, that relief is granted. An informal and imprecise
155070/2022 MENDEZ, HECTOR vs. EUROPA GENERAL CONTRACTING CORP. ET AL Page 3 of 5 Motion No. 002
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request for discovery and inspection via e-mail does not fall under one of the enumerated methods
of obtaining disclosure pursuant to CPLR § 3102.
To the extent Europa seeks an order dismissing Plaintiffs Complaint or precluding him
from offering into evidence from the work telephone, that motion is denied (see Youwanes v
Steinbrech, 193 AD3d 492 [1st Dept 2021 ]). Here, the evidence shows Plaintiff, was evicted,
moved multiple states, was learning to live with an amputated foot, and continued having toes
amputated. Given these circumstances, the Court cannot conclusively find Plaintiff willfully failed
to comply with his obligation to search for and produce the work telephone, which he believed
was in Defendant's possession.
Accordingly, it is hereby,
ORDERED that the motion to vacate the note of issue is granted and the note of issue is
vacated and the case is stricken from the trial calendar; and it is further
ORDERED that all further discovery in this matter shall be completed within 60 days from
service of a copy of this order with notice of entry; and it is further
ORDERED that the parties are directed to immediately begin cooperating to obtain any
relevant photographs and text messages from Plaintiffs work telephone to the extent possible; and
it is further
ORDERED that Defendant Europa General Contracting Corp.' s cross-motion is granted in
part and denied in part; and it is further
ORDERED that Defendant Europa General Contracting Corp.'s cross-motion is granted to
the extent that Defendants are entitled to inspect and download relevant material from Plaintiffs
work telephone and Defendants are entitled to a second deposition of Plaintiff regarding any
relevant materials produced from Plaintiffs work-telephone; and it is further
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ORDERED that Defendant Europa General Contracting Corp. 's cross-motion is granted to
the extent that Plaintiffs informal e-mail request for bank statements is stricken; and it is further
ORDERED that the remainder of Defendant Europa General Contracting Corp.'s cross-
motion is denied, and the parties shall appear for a conference in Room 442, 60 Centre Street, New
York, New York on April 9, 2025 at 9:30 a.m.; and it is further
ORDERED that, within 15 days from the entry of this order, movant shall serve a copy of
this order with notice of entry on all parties and upon the Clerk of the General Clerk's Office, who
is hereby directed to strike the case from the trial calendar and make all required notations thereof
in the records of the court; and it is further
ORDERED that, within 15 days from completion of discovery as hereinabove directed, the
plaintiff shall cause the action to be placed upon the trial calendar by the filing of a new note of
issue and certificate of readiness (for which no fee shall be imposed), to which shall be attached a
copy of this order; and it is further
ORDERED that such upon the Clerk of the General Clerk's Office shall be made in
accordance with the procedures set forth in the Protocol on Courthouse and County Clerk
Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's
website).
This constitutes the Decision and Order of the Court.
2/13/2025 DATE V. ROSADO, J.S.C.
CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION
GRANTED □ DENIED x GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE : INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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