FLOWERS v. Judith Kingsford etc., et al., Defendants. (2024)

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered February 7, 2023, which denied plaintiff's motion for monetary sanctions under CPLR 3126, granted his motion for monetary sanctions under 22 NYCRR 130–1.1 to the extent of awarding him $7,500, and denied his motion to hold defendants in civil contempt pursuant to Judiciary Law § 753, unanimously affirmed, without costs.

The court properly concluded that plaintiff waived his right to seek discovery sanctions under CPLR 3126 by filing the note of issue and certifying that all discovery was complete without reserving any rights or objections (see Marte v. City of New York, 102 A.D.3d 557, 558, 957 N.Y.S.2d 864 [1st Dept. 2013]).

The court did not abuse its discretion in partially granting plaintiff's motion for monetary sanctions under 22 NYCRR 130–1.1. The court properly rejected plaintiff's contention that defendant's overall litigation of the case amounted to frivolous and sanctionable conduct, as defendants’ motions and arguments were neither completely devoid of merit nor evidently advanced in bad faith (see Gordon Group Invs., LLC v. Kugler, 127 A.D.3d 592, 594–595, 8 N.Y.S.3d 115 [1st Dept. 2015]).  The court, which presided over discovery in this case for years, also did not abuse its discretion in declining to impose monetary sanctions for defendants’ delays where plaintiff chose to proceed with the case without further attempts to compel disclosure or impose sanctions until after the note of issue was filed.  The court providently exercised its discretion in determining that monetary sanctions in the amount of $7,500 were warranted for defendants’ failure to notify the court and plaintiff of the death of one of the defendants, which further delayed the litigation (see McCormack v. County of Westchester, 255 A.D.2d 296, 297, 679 N.Y.S.2d 659 [2d Dept. 1998]).

The court properly declined to hold defendants in civil contempt under Judiciary Law § 753, as plaintiff failed to provide clear and convincing evidence that defendants disobeyed a clear and unequivocal order of the court (see El–Dehdan v. El–Dehdan, 26 N.Y.3d 19, 29, 19 N.Y.S.3d 475, 41 N.E.3d 340 [2015];  Matter of B & M Kingstone, LLC v. Mega Intl. Commercial Bank Ltd., 214 A.D.3d 473, 473–474, 186 N.Y.S.3d 137 [1st Dept. 2023]).