630 WEST 52ND LLC v. FRESH INVENTORY SERVICES LLC (2025)

Order, Supreme Court, New York County (Jennifer Schecter, J.), entered March 20, 2024, which granted defendant's motion to enforce a conditional order dated January 16, 2024 and to dismiss the complaint with prejudice, and denied plaintiff's cross-motion to vacate the conditional order, unanimously affirmed, with costs.

Supreme Court providently exercised its discretion in dismissing the complaint and denying plaintiff's cross-motion to vacate (CPLR 3126).  We reject plaintiff's assertion that Supreme Court abused its discretion in requiring plaintiff to submit a Jackson affidavit (see Jackson v. City of New York, 185 A.D.2d 768, 770, 586 N.Y.S.2d 952 [1st Dept. 1992]), as plaintiff's initial response to defendant's discovery requests was wholly inadequate and deposition testimony of its sole member revealed its first Jackson affidavit to be false.  Indeed, plaintiff initially claimed that the documents sought were unavailable, yet later produced more than 1,000 pages of responsive documents.  Furthermore, plaintiff agreed in two separate stipulations that it would provide a Jackson affidavit (see Tepper v. Tannenbaum, 83 A.D.2d 541, 541, 441 N.Y.S.2d 470 [1st Dept. 1981]).

In light of the conditional order, we also reject plaintiff's argument that the court should have considered prejudice and willfulness (see Keller v. Merchant Capital Portfolios, LLC, 103 A.D.3d 532, 533, 962 N.Y.S.2d 48 [1st Dept. 2013];  Diaz v. Maygina Realty LLC, 181 A.D.3d 478, 479, 117 N.Y.S.3d 848 [1st Dept. 2020]).  The conditional order stated that the complaint would be dismissed if plaintiff did not produce all outstanding documents along with a Jackson affidavit by January 19, 2024, and plaintiff only belatedly submitted a new affidavit and responsive documents.  Given plaintiff's failure to timely produce documents — a repeated pattern by plaintiff in this action — it was obligated to demonstrate a reasonable excuse for its failure to comply with discovery obligations, yet failed to do so (see Keller, 103 A.D.3d at 533, 962 N.Y.S.2d 48;  Fish & Richardson, P.C. v. Schindler, 75 A.D.3d 219, 222, 901 N.Y.S.2d 598 [1st Dept. 2010]).

We have considered plaintiff's remaining contentions and find them unavailing.