Smith v. Founders Entertainment, LLC

2026 NY Slip Op 30646(U)

• Court: New York Supreme Court, New York County
• Decided: February 17, 2026
• Docket: Index No. 153677/2019
• Status: Unpublished
• Author: Leslie A. Stroth

Opinion

Smith v Founders Entertainment, LLC 2026 NY Slip Op 30646(U) February 17, 2026 Supreme Court, New York County Docket Number: Index No. 153677/2019 Judge: Leslie A. Stroth 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.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.1536772019.NEW_YORK.002.LBLX000_TO.html[03/06/2026 3:45:34 PM] !FILED: NEW YORK COUNTY CLERK 02/24/2026 10:36 AM! INDEX NO. 153677/2019 NYSCEF DOC. NO. 298 RECEIVED NYSCEF: 02/20/2026 ;

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

PRESENT: HON. LESLIE A. STROTH PART 12M Justice ------·-----------------X INDEX NO. 153677/2019 TIMOTHY SMITH, MOTION DATE 08/06/2025 Plaintiff, MOTION SEQ. NO. 004 - V-

FOUNDERS ENTERTAINMENT, LLC,THEATRICAL RESOURCES ENTERPRISE LLC,MOUNTAIN DECISION + ORDER ON PRODUCTIONS, INC., MOTION

Defendant. ----X

FOUNDERS ENTERTAINMENT, LLC Third-Party Index No. 595021/2022 Plaintiff,

-against-

THEATRICAL RESOURCES, LLC., MOUNTAIN PRODUCTIONS, INC.

Defendant. ------------------- - - - - - - - - X

The following e-filed documents, listed by NYSCEF document number (Motion 004) 143, 144, 145, 146, 147,148,149,150,151,152,153,154,155,156,157,158,159,160,161,162,163,164,165,166,167, 168,169,170,171,172,173,174,175,176,177,178,179,180,181,182,183,184,185,186,187,188, 189, 190, 191, 192, 193, 296, 297 VACATE/STRIKE - NOTE OF ISSUE/JURY were read on this motion to/for DEMAND/FROM TRIAL CALENDAR

Defendant Mountain Productions, Inc. ("Mountain Productions"), moves to vacate the

notice of issue and to compel outstanding discovery, or, to strike Plaintiff and Co-Defendant

Founders Entertainment, LLC's pleadings. For the reasons outlined below, Defendant Mountain

Production's motion is denied.

Pursuant to 22 NYCRR 202.21 (e),

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"Within 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect..."

A "note of issue should be vacated where it is based upon a certificate of readiness that

incorrectly states that all discovery has been completed" (Matos v City of New York, 154 AD3d

532, 533 [1st Dept 2017]). However, "[t]rial courts are authorized, as a matter of discretion, to

permit post-note of issue discovery without vacating the note of issue, so long as neither party

will be prejudiced" (Cuprill v Citywide Towing and Auto Repair Services, 149 AD3d 442,442

[1st Dept 2017]).

The rules for this Part clearly state, "any motions related to disclosure may not be filed

without first conferencing the matter with the Court." In addition, "[a]bsent exigent

circumstances, prior to contacting the court regarding a disclosure dispute, counsel must first

consult with one another in a good faith effort to resolve all disputes about disclosure" (N. Y. Ct.

R. 202.20-f [McKinney]).

At present, the note of issue was filed on July 18, 2025, ten days after the Parties' most

recent status conference (July 8, 2025). No conference has been requested or held with the Court

since the filing of the note of issue. The instant motion was filed on August 6, 2025.

In support of its motion, Defendant Mountain Productions provides an Affirmation of

Good Faith (NYSCEF Doc. No. 145), indicating that correspondence was sent to Plaintiff's

counsel on October 23, 2023; and to Co-Defendant Founders Entertainment, LLC's counsel on

October 23, 2023, March 21, 2024, August 22, 2024, October 31, 2024, January 13, 2025, and

March 24, 2025. All of these dates long predate the filing of the note of issue and the instant

motion.

153677/2019 SMITH, TIMOTHY vs. FOUNDERS ENTERTAINMENT, LLC Page 2 of4 Motion No. 004

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Defendant Mountain Productions also states that phone messages were left for Plaintiffs

and Co-Defendant Founders Entertainment, LLC's counsel. Defendant Mountain Productions

avers that these attempts at contact were unsuccessful in resolving the outstanding discovery

disputes. However, Plaintiff represented that Mountain Productions' call was placed mere hours

before filing the instant motion. The Court therefore finds Defendant Mountain Productions'

attempts at contact to resolve the outstanding discovery issues to be inadequate; moreover,

Defendant Mountain Productions failed to follow this Part's rules in conferencing this matter

with the Court. Therefore, Defendant Mountain Productions' motion to vacate the note of issue

and compel discovery is denied.

CPLR § 3126 authorizes the court to sanction a party who "refuses to obey an order for

disclosure or willfully fails to disclose information which the court finds ought to have been

disclosed." However, "[t]he striking of a party's pleadings should not. .. be imposed except in

instances where the party seeking disclosure demonstrates conclusively that the failure to

disclose was willful, contumacious or due to bad faith" (Gonzalez v 431 E. 115 St. LLC, 68 Misc

3d 1207[A] [Sup Ct, NY County 2020], citing Hassan v Manhattan & Bronx Surface Tr.

Operating Auth., 286 AD2d 303, 304 [1st Dept 2001]).

Both Plaintiff and Co-Defendant Founders Entertainment, LLC represent that they have

responded to Mountain Productions' demands. Given Mountain Productions' failure to follow

Part rules, and in light of the strong judicial preference to resolve cases on the merits, the harsh

penalty of striking the pleadings is not warranted here (see Bassett v Banda Sangsa Company,

Ltd., 103 A.D.2d 728,728 [1st Dept 1984]).

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Accordingly, it is hereby

ORDERED, that Defendant Mountain Productions Inc. 's motion to vacate the note of

issue and to compel outstanding discovery, or, to strike Plaintiff and Co-Defendant Founders

Entertainment, LLC's pleadings, is denied.

The foregoing constitutes the decision and order of the Court.

2/17/2026 DATE I

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

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

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