Modeste v. 606 W. 57 LLC
This text of 2024 NY Slip Op 30351(U) (Modeste v. 606 W. 57 LLC) is published on Counsel Stack Legal Research, covering New York Supreme Court, Kings County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Modeste v 606 W. 57 LLC 2024 NY Slip Op 30351(U) January 30, 2024 Supreme Court, Kings County Docket Number: Index No. 518782/2018 Judge: Francois A. Rivera 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: KINGS COUNTY CLERK 01/30/2024 01:00 PM INDEX NO. 518782/2018 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 01/30/2024
At an IAS Term, Part 52 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 30th day of January 2024
HONORABLE FRANCOIS A. RIVERA ---------------------------------------------------------------------X JOSEPH MODESTE DECISION & ORDER
Plaintiff, Index No.: 518782/2018
-against-
606 WEST 57 LLC, TFC WEST 57 GC LLC, FOUR PLUS CORPORATION, GE 57TH STREET SOUTH HOLDINGS LLC, EE 57TH STREET SOUTH HOLDINGS LLC, FADLING II LLC, SWALLOW II, LLC, APPLEBY-SOUTH HOLDINGS, LLC, 606 WEST 57TH STREET (LlHTC) LLC,
Defendants. ---------------------------------------------------------------------X Recitation in accordance with CPLR 2219 of the notice of motion filed by 606 West 57 LLC, TFC West 57 GC LLC, Four Plus Corporation, GE 57th Street South Holdings LLC, EE 57th Street South Holdings LLC, Fadling II LLC, Swallow II, LLC, Appleby-South Holdings, LLC, 606 West 57th Street (LlHTC) LLC (hereinafter the movants) on February 27, 2020, under motion sequence number one for an order: (1) pursuant to CPLR §§ 3126 (3) and 3042 (d) dismissing the verified complaint of Joseph Modeste (hereinafter the plaintiff); or, in the alternative, (2) pursuant to CPLR § 3126 (2), precluding plaintiff from offering evidence at trial against defendants; or, in the alternative, (3) pursuant to CPLR § 3124, compelling production of all outstanding discovery within ten (10) days and precluding any discovery not timely produced.
-Notice of motion -Affirmation of good faith Exhibits A-F -Affirmation in support Page 1 of 5
1 of 5 [* 1] FILED: KINGS COUNTY CLERK 01/30/2024 01:00 PM INDEX NO. 518782/2018 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 01/30/2024
-Affirmation in opposition
BACKGROUND
On September 17, 2018, plaintiff commenced this negligence action by the filing
of a summons and verified complaint.
On October 15, 2018, defendants EE 57th Street South Holdings LLC, GE 57th
Street South Holdings LLC, 606 West 57 (LIHTC) LLC i/p/h as “606 West 57th street
(LIHTC) LLC, Appelby-South Holdings, LLC i/p/h as “Appleby South LLC,” and TFC
West 57 GC LLC i/p/h as TFC West 57th GC LLC interposed and filed a verified
answer.
On May 28, 2020, plaintiff filed a motion under sequence two seeking an
extension of time to file the note of issue.
On July 14, 2020, plaintiff filed a motion under sequence three seeking leave to
amend the verified complaint.
By order dated November 17, 2020, and filed on February 8, 2021, the Court
granted plaintiff’s motion filed: (1) under sequence number two for an order extending
the time to file a note of issue, and (3) under sequence three, for an order pursuant to
CPLR 3025(b) amending the verified complaint.
The order dated November 17, 2020, granted an extension of the date to file a note
of issue to April 30, 2021. The order also granted leave to change the verified complaint.
The caption of the amended complaint would now read as follows: 606 West 57 LLC,
Page 2 of 5
2 of 5 [* 2] FILED: KINGS COUNTY CLERK 01/30/2024 01:00 PM INDEX NO. 518782/2018 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 01/30/2024
TFC West 57 GC LLC, Four Plus Corporation, GE 57th Street South Holdings LLC, EE
57th Street South Holdings LLC, Fadling II LLC, Swallow II, LLC, Appleby-South
Holdings, LLC, 606 West 57th Street (LlHTC) LLC.
On December 16, 2021, plaintiff filed a motion under sequence four seeking an
order: (1) pursuant to CPLR 2004 extending the time to file the note of issue, and (2)
pursuant to CPLR 3124 & 3126 compelling plaintiff to comply with the discovery
schedule agreed to by the parties in the December 15, 2021’s proposed stipulation by the
new Note of Issue date of June 17, 2022; or, in (3) If the Court does not extend the Note
of Issue deadline, directing the parties to conduct post-Note of Issue discovery according
to the schedule delineated in the December 15, 2021’s proposed stipulation.
By order dated January 11, 2022, the Court granted motion sequence number four
and directed the following among other things. Plaintiff is to file the note of issue by
November 11, 2022. The parties are to complete discovery pursuant to the Final Pre-note
order on July 26, 2021. Plaintiff shall respond to defendants’ post EBT demands dated
July 6, 2021, on or before February 11, 2022. Defendants are to appear for EBTs on or
before January 28, 2022. Plaintiff is to attend IME on or before March 11, 2022.
LAW AND APPLICATION
Pursuant to CPLR 3126, a court may impose discovery sanctions, including the
striking of a pleading or preclusion of evidence, where a party refuses to obey an order
for disclosure or willfully fails to disclose information which the court finds ought to
have been disclosed (Aha Sales, Inc. v. Creative Bath Prods. Inc., 110 A.D.3d 1019, 1019 Page 3 of 5
3 of 5 [* 3] FILED: KINGS COUNTY CLERK 01/30/2024 01:00 PM INDEX NO. 518782/2018 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 01/30/2024
[2nd 2013], quoting CPLR 3126; see Gorbatov v. Tsirelman, 206 A.D.3d 887, 889 [2nd
2022]). The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a
matter within the discretion of the court” (Gorbatov v. Tsirelman, 206 A.D.3d at 889. To
invoke the drastic remedy of preclusion, the court must determine that the offending
party's lack of cooperation with disclosure was willful, deliberate, and contumacious
(Aha Sales, Inc. v. Creative Bath Products, Inc., 110 A.D.3d at 1019. The willful or
contumacious character of a party's conduct can be inferred from the party's repeated
failure to comply with discovery demands or orders without a reasonable excuse (Aha
Sales, Inc. v. Creative Bath Products, Inc., 110 A.D.3d at 1019).
On February 27, 2020, the movants filed the instant motion under sequence
number one seeking an order CPLR §§ 3126 (3) and 3042 (d) dismissing the verified
complaint of Joseph Modeste or precluding him from offering evidence at trial against
the movants. In the alternative the movants sought an order pursuant to CPLR § 3124,
compelling the plaintiff to produce all outstanding discovery within ten (10) days and
precluding any discovery not timely produced.
There has been no court order deciding the movants’ instant motion under motion
sequence number one. However, it is apparent from the motion that followed under
motion sequence number two, three and four, and the decisions and orders that were
issued deciding motions sequence number two, three and four, that motion sequence
number one has been resolved and is rendered academic. There is, therefore, no longer a
need for a separate decision and order under motion sequence number one.
Page 4 of 5
4 of 5 [* 4] FILED: KINGS COUNTY CLERK 01/30/2024 01:00 PM INDEX NO. 518782/2018 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 01/30/2024
CONCLUSION
The instant motion by 606 West 57 LLC, TFC West 57 GC LLC, Four Plus
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
2024 NY Slip Op 30351(U), Counsel Stack Legal Research, https://law.counselstack.com/opinion/modeste-v-606-w-57-llc-nysupctkings-2024.