SERVAN v. ES BUILDERS GROUP LLC (2025)

Order, Supreme Court, Bronx County (Ashlee Crawford, J.), entered September 16, 2024, which granted plaintiff's motion pursuant to CPLR 3126 to strike defendants’ answer and schedule an inquest on damages, unanimously reversed, on the law, without costs, and the motion denied without prejudice to renewal.

The court should have denied plaintiff's motion to strike the answer because the affirmation of good faith from plaintiff's counsel failed to comply with Uniform Rules for Trial Courts (22 NYCRR) § 202.20–f(b).  Counsel states only perfunctorily that defendants failed to comply with four court orders for a deposition and that he contacted defendants on a certain date to confirm the deposition.  Counsel failed to attest that he conducted an in-person or telephonic conference as required by 22 NYCRR 202.20–f(b) (see Steinberg v. Bais Yaakov Council, Inc., 237 A.D.3d 1131, 1132–1133, 233 N.Y.S.3d 603 [2d Dept. 2025]).  While counsel's affirmation in support of the motion provides additional explanations, such as that “[they] made an effort” to contact defendants’ counsel and that “[their] office made [an] effort to confirm the deposition,” the affirmation fails to specify the mode of communications, by whom or to whom the communications were made, whether any messages were left, and whether counsel followed up with the attempt to confirm the deposition (see 22 NYCRR 202.7[a], [c];  Amato v. Verizon N.Y. Inc., 205 A.D.3d 406, 406–407, 168 N.Y.S.3d 36 [1st Dept. 2022]).

In light of the foregoing, we do not reach the issue of whether defendants’ violation of four court orders over a period of two years was willful and contumacious.