NEW YORK CITY HOUSING AUTHORITY, Adams Houses, Petitioner, v. Americo MORDAN, John Doe, Jane Doe, Respondents.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion
Notice of Motion, Affirmation 1
Notice of Cross Motion, Affirmation 2
Opposition/Replying Affirmations 3,4
Motions Sequence No. 5 and 6
Decision and Order After Oral Argument
Petitioner moves pursuant to CPLR 2221 for “re-argument/renewal” of the February 6, 2019 Decision/Order.
Respondent cross-moves pursuant to CPLR 3126 for an order striking petitioner's pleading and dismissing the petition.
This holdover petition seeks possession of Apartment 19G located at 680 Tinton Avenue, the Bronx, New York. Respondent raised a general denial and affirmative defenses. Respondent maintains that he is entitled to remain in the apartment as a remaining family member of the deceased tenant of record.
On November 3, 2017, this Court, without opposition, granted respondent leave to take the oral examination before trial of Maria Adorno. Maria Adorno was the Housing Assistant assigned to Adams Houses since 1990. Respondent's defense to this holdover proceeding is that he has resided in the apartment for years with the knowledge and consent of Adams Houses. Respondent maintains that Ms. Adorno is familiar with the facts surrounding his occupancy and has knowledge of his continued occupancy at the apartment. Respondent alleges that Ms. Adorno's testimony is “critical” to his defense.
Petitioner did not dispute that the testimony of Ms. Adorno would be material to respondent's defense. Sometime in May 2013 respondent was added to the household composition. His spouse passed away. Respondent informed the manager. He was then informed that he could not remain in the apartment because he had not been in continuous occupancy of the apartment for one year with the written permission of the New York City Housing Authority. Respondent's first step and second step grievance were denied. He was not given an opportunity to have a third step grievance in front of an impartial hearing officer. Respondent now faces defending a holdover proceeding and an eviction. In preparation of the trial in Housing Court, respondent sought leave to take the oral examination before trial of Ms. Adorno. Discovery was granted to afford respondent a full and fair opportunity to contest the underlying decision that he could not remain in the apartment after the death of his spouse.
After the November 3, 2017 Decision/Order, respondent sought information regarding the address of Maria Adorno in order to schedule the examination before trial. It is undisputed that petitioner did not disclose the address of Ms. Adorno. Respondent demonstrated that the efforts to secure the address of Ms. Adorno were frustrated by the petitioner.
On or about April 5, 2018, respondent moved to strike petitioner's pleading or to dismiss the petition pursuant to CPLR § 3126 for failure or refusal to disclose the address of Ms. Adorno. Petitioner alleged that Ms. Adorno is no longer employed with them. The motion was adjourned numerous times until an October 17, 2018 Interim Order issued.
The October 17, 2018 Interim Order provides:
Petitioner is directed to appear and provide testimony from a person having knowledge and information regarding the employment status of the witness sought to be examined by respondent, to wit: Maria Adorno.
The hearing was adjourned several times at the request of both parties. The adjournments gave an opportunity for petitioner to produce a witness from its Human Resources department (HR). The hearing date was marked final for January 22, 2019 at 2:15PM.
On January 22, 2019, petitioner did not present any testimony from a “person having knowledge and information regarding the employment status of the witness.” Instead of producing a witness, petitioner's counsel sought to introduce a letter regarding Ms. Adorno. This letter constituted hearsay and did not comply with the October 17, 2018 Interim Order.
On February 6, 2019, the Court issued the conditional preclusion Decision/Order which directed the petitioner to produce Ms. Adorno at an examination before trial. The February 6, 2019 Decision/Order provides: Failure to produce the witness on or before March 30, 2019, may be the basis for the imposition of appropriate remedies pursuant to CPLR 3126.
Petitioner did not produce Ms. Adorno pursuant to the February 6, 2019 Order.
We now learn that Ms. Adorno has moved to Puerto Rico. It is not known when Ms. Adorno left New York and moved to Puerto Rico.
Petitioner moved to reargue and renew. Respondent cross moved to strike the pleading and dismiss the petition.
Petitioner's Motion to Reargue/Renew:
Petitioner seeks “reargument/renewal” of the Decision/Order of February 6, 2019 pursuant to CPLR 2221.
On January 22, 2019, petitioner did not produce a witness in court in direct contravention of this Court's October 17, 2018 Interim Decision/Order. In the instant motion, petitioner now attaches a letter from its Human Resource Department (HR) dated March 1, 2019. The HR letter states that Ms. Adorno was employed by petitioner from March 19, 1990 to December 14, 2016. The letter cannot correct the failure to produce the witness on January 22, 2019.
Respondent's Cross-Motion to Strike or Dismiss
Respondent's cross-motion seeks an order striking the pleading and dismissing the petition. Respondent argues that petitioner has frustrated efforts to secure the testimony of Ms. Adorno, a critical witness to the respondent's defense. Respondent argues that petitioner's failure to comply was “dilatory and deceptive.”
Petitioner's Motion to Reargue and Renew pursuant to CPLR 2221
The relevant part of CPLR Rule 2221(f) provides:
A combined motion for leave to reargue and leave to renew 1 shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made. If a motion for leave to reargue or leave to renew is granted, the court may adhere to the determination on the original motion or may alter that determination.
A motion for leave to reargue shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion. CPLR 2221 (d).
Petitioner offers “new” information in support of its motion to reargue. The new information, the letter from HR is dated March 1, 2019, after the February 6, 2019 decision was rendered. This letter was not misapprehended or overlooked because it did not exist at the time the decision was rendered.
The HR letter the petitioner relies on is hearsay. Petitioner seeks to submit a document after the hearing has concluded and the decision was rendered. Petitioner is seeking to “correct” its failure to produce a witness. The purpose of the hearing was to ask questions and inquire. A letter cannot be cross-examined.
The CPLR is clear that a motion to reargue shall not include any matters of fact not offered on the prior motion. Petitioner's motion does not satisfy the standard under CPLR 2221. The HR letter did not exist at the time of the prior motion January 22, 2019 hearing when petitioner was to produce a witness. The HR letter will not be treated now as evidence just because it is attached to the motion to reargue. As such letter was not and could not be in evidence at the time of the hearing, it was not overlooked or misapprehended by this Court.
Petitioner, in disregard of the Interim Order, did not bring a witness with knowledge and information to testify to the facts at issue. The Court could not have overlooked or misapprehended facts of the case or the law because there was no testimony as to those facts. Petitioner relies on facts that were not introduced into evidence. The disregard of the court order to produce a witness is not a fact that is subject to misapprehension but rather a lack of respect for the Court. “If the credibility of the court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity.” Gibbs v. St. Barnabas Hospital, 16 NY3d 74 (2010) citing Kihl v. Pfeffer, 94 NY2d 118 (1999)
The March 1, 2019 HR letter cannot take the place of a witness's testimony. The offer of “new” proof is inconsistent with CPLR Rule 2221(d)2 that a motion to reargue shall not include any matters of fact not offered on the prior motion.
The motion to reargue the February 9, 2019 Decision/Order is denied.
Motion to Renew:
Pursuant to CPLR Rule 2221(e), a motion to renew, shall be based upon new facts not offered on the prior motion and that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination and shall contain reasonable justification for the failure to present such facts on the prior motion.
Petitioner does not offer “new facts.” The facts demonstrate that petitioner knew or should have known that Ms. Adorno was retired as of December 14, 2016. If petitioner had informed the Court that Ms. Adorno is retired, the Court might have reached a different decision. The information, however, was not presented to the Court even though it was in the exclusive control of the petitioner since at least December 14, 2016.
Ms. Adorno is alleged to be a critical witness for respondent to demonstrate that petitioner implicitly approved respondent's residency in the apartment with the tenant of record and therefore relieving respondent of the written consent requirement. See, Matter of Porter v. New York City Housing Authority, 169 AD3d 455 (1st Dep't 2019).
In Matter of Porter, (supra), the Appellate Division remanded the proceeding to the New York City Housing Authority Impartial Hearing Offices for a “determination, on the existing record.” The occupant seeking the status of a remaining family member sought to show that the project manager had knowledge of the occupant's residence and as such excused from the written consent requirement that would result in respondent's eviction.
The Porter (supra) decision demonstrates why the oral examination before trial of Ms. Adorno is relevant to the outcome of this case. This Court granted leave to conduct such an examination before trial because it was undisputed and unopposed that Ms. Adorno was a material or critical witness to respondent's defense. Petitioner's motion to renew claims that the “new fact” that would change the outcome regarding producing Ms. Adorno is that she is retired and no longer residing in New York City. The HR letter indicates that Ms. Adorno retired as of December 14, 2016. The retirement approval document was created on May 12, 2017. The retirement was approved 5 months prior to the November 3, 2017 Decision/Order. This information was not provided to the Court. The November 3, 2017 Decision/Order is based on the unopposed fact that Ms. Adorno is a material witness to respondent's defense.
Petitioner knew or should have known that Ms. Adorno retired as of December 14, 2016. Even assuming, arguendo, that Ms. Adorno's retirement date was May 12, 2017, this is prior to the November 3, 2017 Decision/Order. Petitioner did not disclose this to the Court. This information was not offered to the Court on the prior motion and petitioner did not present any “reasonable justification” for the failure of presenting this information in the prior motion.
Petitioner does not show “new facts” in support of the motion to renew and as such the motion to renew is denied.
Cross-Motion to Strike/Dismiss
CPLR 3126 allows for striking of pleadings and/or defenses.
CLPR § 3126 Penalties for refusal to comply with order or to disclose.
If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an office, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them:
1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or
2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or
3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.
The striking of a pleading is a drastic remedy. Issues of discovery can become complex and sometimes delay the ultimate resolution of a case. Courts are placed in the unique position to “fix” the discovery impasse that can delay the adjudication of a case. Sometimes the court can fashion a remedy where a motion to strike is denied on the condition that a party complies with the discovery request. Gibbs v. St. Barnabas Hospital, 16 NY3d 74 (2010). The Court of Appeals held that failure to follow a conditional order of preclusion absent both a reasonable excuse for non-compliance and a meritorious cause of action requires, as a matter of law, that the movant's motion to strike pursuant to CPLR 3126 be granted.
The November 3, 2017 Decision/Order granted leave to conduct an examination before trial of Maria Adorno. Respondent attempted to obtain the address of Maria Adorno. Petitioner did not provide such information despite the efforts detailed in respondent's 1st motion to preclude. Petitioner did not dispute that it did not disclosed Ms. Adorno's address.
The November 3, 2017 Decision/Order recognized Ms. Adorno, the nonparty witness, as a material witness. Petitioner's lack of transparency regarding Ms. Adorno's status and address had frustrated respondent's right to take the oral examination of a witness material to the defense. See October 17, 2018 Interim Order.
This Court's February 6, 2019 Order gave petitioner an opportunity to avoid dismissal and to resolve the impasse of the discovery process. This is the conditional preclusion order. The Court warned that [f]ailure to produce the witness on or before March 30, 2019, may be the basis for the imposition of appropriate remedies pursuant to CPLR 3126. Petitioner was given one final opportunity to comply with the court order and the discovery request.
Petitioner alleges that Ms. Adorno now resides in Puerto Rico. What possible conditional order is available to address the respondent's discovery demand? This Court has no jurisdiction over a resident of Puerto Rico. There are no other available remedies or conditional orders to allow the respondent to conduct an examination before trial of this material witness.
Whether Ms. Adorno was still employed by petitioner at the time the disclosure was sought is not dispositive to this 2nd motion to strike the pleading. Petitioner failed to bring a witness to the hearing as per the October 17, 2018 Interim Order. A year later, petitioner discloses that Ms. Adorno is residing in Puerto Rico which is outside the jurisdiction of the Civil Court. Ms. Adorno's newly disclosed residency in Puerto Rico effectively precludes respondent from calling her as a witness even if respondent forgoes the oral examination before trial.2
The disclosure that Ms. Adorno now resides in Puerto Rico does not excuse the failure to produces a witness at the hearing. The unexplained delay in disclosing Ms. Adorno's location or address by reference to the privacy rules is unavailing since the Court had already ruled that the nonparty witness was a material witness to the respondent's defense. Petitioner does not allege any good faith efforts to provide needed information to comply with the Order directing the examination before trial. Petitioner does not allege any good faith efforts to reach the witness or to comply with the Interim Order. Petitioner does not even offer an affidavit with a reasonable excuse for the failure to produce the requested items. “If the credibility of courts orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity.” Kihl v. Pfeffer, 94 NY2d 118 (1999).
Recently, the Appellate Division in Beach v. Touradji Capital Mgt., LP, (First Dep't., infra) reversed the trial court's order precluding evidence. Although the court here did not strike a pleading, its ruling could fairly be viewed as having done so, since the precluded evidence was critical to the fiduciary duty claims. Moreover, the court's drastic sanctions were disproportionate to the alleged discovery malfeasance. It is unclear why a short continuance to give plaintiffs time to review the newly-produced documents would not have been a viable option, or why further curative instructions would not have sufficed. The record as a whole does not support a finding of willfulness or bad faith so as to justify the severe sanctions imposed (see Corrigan v. New York City Tr. Auth., 144 AD3d 495, 496 [1st Dept 2016]) 2020 NY Slip Op 00230, January 14, 2020.
Unlike the scenario in Beach v. Touradji Capital Mgt., LP, allowing the trial to proceed without the examination of the witness Ms. Adorno, would deny respondent a fair trial. The petitioner is not affected in the same way as the respondent. Respondent bears the burden of presenting testimony in line with Matter of Porter (supra). The time to disclose that Ms. Adorno resides in Puerto Rico has passed; the clock cannot be turned back. A short continuance to review the newly-produced information is not a viable option. Curative instructions cannot suffice under these facts. Absent Ms. Adorno's voluntary return to New York City, respondent cannot go forward with an examination before trial or call her as a witness.
In Beach v. Touradji Capital Mgt., LP, the Appellate Division allowed the appellants to question the plaintiff in order to ensure a fair trial on all their claims. “As appellants point out, the trial was largely a credibility contest between Touradji and plaintiffs, and the preclusion of Vollero's alleged misconduct unduly hampered appellants' ability to undermine his testimony.”
Striking a pleading and dismissing a case is proper when the action of a party “fails to comply with a court order and frustrates the disclosure schemes set forth in the CPLR,” Kihl v. Pfeffer. Where a party failed to comply with a discovery demand and then disregarded a conditional order of preclusion, the Court of Appeals has held that the movant was “entitled to the dismissal of the complaint.” See Gibbs. Hence, we have made clear that to obtain relief from the dictates of a conditional order that will preclude a party from submitting evidence in support of a claim or defense, the defaulting party must demonstrate (1) a reasonable excuse for the failure to produce the requested items and (2) the existence of a meritorious claim or defense.
The Court understands that by striking the pleading this summary holdover proceeding will be dismissed. Based on the facts and circumstances, the Court is constrained to grant respondent's cross motion to strike the pleading.
Paragraph 4 of the Petition alleges that “respondent holds over and continues in possession of said premises without the permission of the petitioner although such notice to quit has been served and time for removal from said premises has expired.” Respondent's defense is that he is a remaining family member with knowledge and consent of the petitioner and as such excused from the written consent requirement. Matter of Porter (supra). Ms. Adorno testimony is directly related to defense of the allegations in Paragraph 4 and therefore she is a critical witness to this proceeding. The failure to produce Ms. Adorno despite the conditional preclusion order must result in the striking of Paragraph 4 of the petition. Without Paragraph 4, petitioner cannot prove its prima facie case. Striking Paragraph 4 requires the dismissal of the petition.
Conclusion and Order
It is Ordered that petitioner's motion to renew/reargue is denied.
It is Ordered that respondent's cross-motion is granted, the pleading is stricken, and the petition dismissed with prejudice.
This Decision and Order is being mailed to both sides.
This constitutes the Decision and Order of the Court.
1. The Court notes petitioner's motion does not seek leave to reargue/renew but rather it is a motion to renew/reargue.
2. The Court notes that there was no information provided as to when Ms. Adorno moved to Puerto Rico and therefore it cannot be determined whether the Civil Court had jurisdiction at the time of the November 3, 2018 Interim Decision/Order or the first motion to preclude.
Enedina Pilar Sanchez, J.
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