Thermald Realty Assoc. I LLP v. Monk Thrift Shop Inc

2024 NY Slip Op 33281(U)

• Court: New York Supreme Court, New York County
• Decided: September 17, 2024
• Docket: Index No. 655740/2021
• Status: Unpublished

Opinion

Thermald Realty Assoc. I LLP v Monk Thrift Shop Inc 2024 NY Slip Op 33281(U) September 17, 2024 Supreme Court, New York County Docket Number: Index No. 655740/2021 Judge: Arlene P. Bluth 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 09/17/2024 04:48 PM INDEX NO. 655740/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 09/17/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 655740/2021 THERMALD REALTY ASSOCIATES I LLP, MOTION DATE 09/16/2024 Plaintiff, MOTION SEQ. NO. 001 -v- MONK THRIFT SHOP INC, AMIRA MAHMOUD, MAGDY DECISION + ORDER ON IBRAHIM MOTION Defendant. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 were read on this motion to/for VACATE/STRIKE - NOTE OF ISSUE .

Defendants’ motion to strike the note of issue is denied.

Background

In this case about purportedly unpaid rent, defendants seek to vacate the note of issue

filed by plaintiff. To put this dispute in perspective, the entire complaint was one paragraph. It

specified the months that the rent was unpaid and alleged the total amount due. Among other

things, the lease and rent ledger were produced during discovery. No counterclaims were

asserted.

On this motion, the affirmation of good faith from defendant’s counsel seeking to strike

the note of issue admits that plaintiff uploaded a letter dated July 8, 2024 which stated that all of

defendants’ demands were responded to and that plaintiff wanted to file a note of issue.

However, counsel for defendants insists that “While it is true that the Defendant [sic] did provide

“responses” to the Defendant’s discovery demands and interrogatories, the same were not

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adequate, complete or in any way meaningful” (NYSCEF Doc. No. 21, ¶ 4). Defendants point

out that plaintiff submitted these responses to defendants’ discovery demands in May 2024, but

now claim that the responses were deficient.

In opposition, plaintiff argues that it was not aware of any outstanding discovery or any

discovery disputes until the filing of this motion. It details that the parties entered into a

preliminary conference order in August 2023 (NYSCEF Doc. No. 10). Plaintiff observes that

defendants e-filed their discovery demands in early May 2024 and that it responded on May 15,

2024. Its counsel attaches email correspondence dated June 12, 2024 in which he follows up

about the discovery status of the case (NYSCEF Doc. No. 31). This email also mentions that

plaintiff wanted to notice the case for trial (id.).

Plaintiff contends that defendants did not respond to this inquiry and that it reached out

again to counsel for defendants on June 26, 2024 (NYSCEF Doc. No. 32). In this email,

plaintiff’s attorney noted that “This is a final follow up. We have been directed by the Court to

upload a letter on or before July 11, 2024, regarding the status of discovery. If your client has no

settlement offer prior to the close of business this week, we intend to notify the Court that the

matter is ready for trial. Please let me know if you have any questions” (id.). Plaintiff maintains

that counsel for defendants did not respond and so it uploaded a letter on July 8, 2024 explaining

that it had served discovery responses and requesting permission to file a note of issue.

Defendants did not upload anything in response to plaintiff’s letter and so, after waiting

until the Court’s July 11, 2024 deadline, the Court issued an order dated July 12, 2024 granting

plaintiff permission to file a note of issue.

Defendants did not submit a reply on this motion.

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Discussion

The Court denies the motion. 22 NYCRR 202.7(a) provides, in pertinent part, that when

filing a motion, an attorney must submit “an affirmation that counsel has conferred with counsel

for the opposing party in a good faith effort to resolve the issues raised by the motion.” 22

NYCRR 202.7(c) states that “The affirmation of the good faith effort to resolve the issues raised

by the motion shall indicate the time, place and nature of the consultation and the issues

discussed and any resolutions, or shall indicate good cause why no such conferral with counsel

for opposing parties was held.”

Defendants’ affirmation of good faith fails to satisfy these requirements. Counsel for

defendants only offers a conclusory assertion that “Our office has conferred in good faith with

the other parties to resolve the issues that are the subject of the within motion” (NYSCEF Doc.

No. 21, ¶ 2). No details are provided about when these discussions occurred except for the vague

contention that “Our office did return a call from defense [sic] counsel but was unable to reach

counsel for the Defendant [sic] regarding the inadequacy of these responses” (id. ¶ 5).

Obviously, a single effort to return a call which lacks any detail, such as the date when it

occurred, is not evidence of a good faith effort to resolve a purported discovery dispute (see

Anuchina v Mar. Transp. Logistics, Inc., 216 AD3d 1126, 1128, 191 NYS3d 74 [2d Dept 2023]

[analyzing an insufficient affirmation in good faith under 22 NYCRR 202.7]).

In fact, the instant record demonstrates that plaintiff responded to defendants’ discovery

demands in May 2024 and then defendants failed to confer with plaintiff. In contrast to

defendants’ moving papers, plaintiff attached email correspondence that shows its efforts to

move this case forward. Defendants, because they did not bother to submit a reply, therefore do

not dispute plaintiff’s assertions in opposition that they wholly failed to respond to plaintiff’s

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emails about the status of discovery. Nor did defendants upload anything to NYSCEF, such as a

letter or a motion, to indicate that they were unsatisfied with plaintiff’s discovery responses.

Instead, defendants did nothing and waited until after plaintiff filed a note of issue to suddenly

raise issues with plaintiff’s discovery responses. At best, that demonstrates a lack of attention to

this case. At worst, it suggests a strategy to delay this nearly three-year old case.

The fact is that this is not a complicated case; it is based on a one paragraph complaint

and an answer with no counterclaims from three years ago. Plaintiff has already specified the

months due in the complaint and has produced the rent ledger and the lease.

Defendants had ample opportunity and regular prompting from both counsel for plaintiff

and this Court to raise concerns about discovery. Yet, for some unexplained reason, defendants

did not say anything about plaintiff’s discovery responses and so plaintiff, as was its right,

sought to move this case to trial. Defendants did not meet their burden to cite a reasonable

explanation for why they ignored plaintiff and this Court and waited so long to complain about

discovery.

Accordingly, it is hereby

ORDERED that defendants’ motion to strike the note of issue is denied.

9/17/2024 $SIG$ DATE ARLENE P. BLUTH, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ GRANTED X DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

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

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