LEFFLER v. KOTICK (2024)

Order, Supreme Court, New York County (Eric Schumacher, J.), entered April 1, 2024, which, to the extent appealed from, denied defendant's post-judgment motion to strike plaintiff's pleadings and granted plaintiff's motion to preclude defendant from producing witnesses, unanimously affirmed, without costs.

Supreme Court providently denied defendant's motion to strike the pleadings.  The court previously granted summary judgment on plaintiff's defamation claim, finding him liable for making substantially false statements to a nonprivileged party, and this Court affirmed that decision (see Leffler v. Kotick, 187 A.D.3d 543, 543, 130 N.Y.S.3d 663 [1st Dept. 2020]).  Even if his motion was timely, defendant fails to argue, let alone demonstrate, that plaintiff failed to comply with discovery orders in a willful or contumacious manner (see Rodney v. City of New York, 192 A.D.3d 606, 606, 144 N.Y.S.3d 705 [1st Dept. 2021];  Mangual v. New York City Tr. Auth., 48 A.D.3d 212, 212, 850 N.Y.S.2d 101 [1st Dept. 2008]).

Supreme Court providently granted plaintiff's motion to preclude defendant's witnesses.  The only issue remaining in this case is the extent to which defendant's defamation damaged plaintiff's reputation and caused him economic injury.  Defendant fails to show how any of these witnesses have personal knowledge of the damages plaintiff sustained as a result of the defamation.  In addition, none of these witnesses were previously identified during discovery or testified at a deposition (see Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 A.D.3d 201, 212, 959 N.Y.S.2d 74 [2d Dept. 2012]).  Defendant's failure to identify these witnesses in the nearly six years that this litigation has been pending warrants their preclusion (see id.).