BY LAWRENCE v. Prima Properties, Inc., Defendant. (2025)

Order, Supreme Court, Bronx County (Naita A. Semaj, J.), entered June 13, 2023, which, to the extent appealed from as limited by the briefs, granted the motion of defendant Parkash 242, LLC under CPLR 3124 to compel plaintiffs to disclose all outstanding discovery by July 7, 2023, and under CPLR 3126 to preclude plaintiffs from presenting evidence at trial in support of their liability and damages claims, unanimously modified, on the law, to deny the motion to preclude plaintiffs from presenting evidence at trial in support of their liability and damages claims, and otherwise affirmed, without costs.

Order, same court and Justice, entered on or about October 5, 2023, which granted Parkash's cross-motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, the cross-motion denied, and the complaint reinstated.  Appeal from order, same court and Justice, entered on or about October 5, 2023, which denied plaintiffs’ motion to renew and reargue their opposition to Parkash's motions under CPLR 3124 and 3126, unanimously dismissed, without costs, as academic to the extent it sought renewal and as taken from a nonappealable order to the extent it sought to reargue.

Supreme Court improvidently exercised its discretion in precluding plaintiffs from presenting evidence to support their liability and damages claims against Parkash for failing to comply with discovery demands.  Although plaintiffs were not fully compliant with certain discovery directives, including providing a supplemental bill of particulars and authorizations, preclusion is too severe a sanction under the circumstances (see Hogin v. City of New York, 103 A.D.3d 419, 420, 959 N.Y.S.2d 185 [1st Dept. 2013]).  Parkash did not conclusively demonstrate that plaintiffs’ delay in providing discovery was willful or in bad faith.  The record shows that plaintiffs attempted to comply with their discovery obligations by annexing a response to Parkash's demands to their opposition to Parkash's first motion to compel, and that plaintiffs provided five more responses to Parkash's demands before Parkash filed its second motion to compel (see Dauria v. City of New York, 127 A.D.2d 459, 460, 511 N.Y.S.2d 271 [1st Dept. 1987];  Bassett v. Bando Sangsa Co., 103 A.D.2d 728, 728, 478 N.Y.S.2d 298 [1st Dept. 1984]).  Thus, plaintiffs should be afforded a further opportunity to comply (see Catarine v. Beth Israel Med. Ctr., 290 A.D.2d 213, 215–216, 735 N.Y.S.2d 520 [1st Dept. 2002];  Newman v. Chartered New England Corp., 63 A.D.2d 617, 617–618, 405 N.Y.S.2d 87 [1st Dept. 1978]).  Further, there is a “strong preference in our law that actions be decided on their merits” (Nieves v. Citizens Advice Bur. Jackson Ave. Family Residence, 140 A.D.3d 566, 567, 32 N.Y.S.3d 507 [1st Dept. 2016]).

The court's grant of Parkash's cross-motion for summary judgment dismissing the complaint is reversed and the complaint reinstated because the prior preclusion order was the court's sole basis for granting summary judgment.