GUENZBURGER v. Dwell Family Doctors formerly known as Throggs Neck Urgent Care et al., Defendants–Appellants. (2023)

Order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered September 6, 2022, which, insofar as appealed from, precluded defendants Dwell Family Doctors f/k/a Throggs Neck Urgent Care, Throggs Neck Walk–In Medical Care, P.C., and Vadim Davydov, D.O. from introducing employment records and rules and regulations at trial or in connection with a summary judgment motion, unanimously affirmed, without costs.

The motion court properly awarded preclusion as a discovery sanction.  “[I]t is unnecessary to demonstrate willful and contumacious behavior in order to impose a sanction like a monetary sanction or preclusion, as opposed to a more drastic sanction such as the striking of a pleading” (Metropolitan Bridge & Scaffolds Corp. v. New York City Hous. Auth., 168 A.D.3d 569, 572, 92 N.Y.S.3d 248 [1st Dept. 2019];  Vandashield Ltd. v. Isaacson, 146 A.D.3d 552, 556, 46 N.Y.S.3d 18 [1st Dept. 2017]).  It is undisputed that defendants never produced the subject employment records or rules or regulations, despite multiple compliance conference orders directing same.  Moreover, if, as defendants contend, no such records are in their possession or control, then precluding them from introducing such records into evidence cannot prejudice them, as it would be impossible to introduce evidence that does not exist (cf.  Corriel v. Volkswagen of Am., Inc., 127 A.D.2d 729, 731, 512 N.Y.S.2d 126 [2d Dept. 1987] [“the plaintiff's failure to provide the information in his possession would preclude him from later offering proof regarding that information at a trial”]).

Defendants’ argument that plaintiff's motion should have been denied for failure to file a sufficient affirmation of good faith was not made before the motion court and is thus not properly before this Court (see Galarza v. 25 Hope St. Assoc., LLC, 209 A.D.3d 984, 986, 176 N.Y.S.3d 706 [2d Dept. 2022];  Rosenbaum v. Festinger, 151 A.D.3d 897, 897, 54 N.Y.S.3d 301 [2d Dept. 2017]).