CONTINUUM ENERGY TECHNOLOGIES LLC v. [And Another Action]. (2026)

Order, Supreme Court, New York County (Joel M. Cohen, J.), entered on or about June 13, 2025, which denied plaintiffs’ motion to strike defendants’ pleadings and for sanctions, unanimously affirmed, without costs.

Supreme Court properly denied plaintiffs’ motion to strike defendants’ answer. The motion was procedurally deficient, as it was not supported by an affirmation of good faith (see Jackson v. Hunter Roberts Constr. Group, L.L.C., 139 A.D.3d 429, 429, 29 N.Y.S.3d 170 [1st Dept. 2016]).  Plaintiffs point out that they moved pursuant to 22 NYCRR 130–1.1 (monetary sanctions) as well as CPLR 3126.  However, their motion still related to disclosure (22 NYCRR 202.7[a]) because they sought sanctions based on the conduct of defendant Rajiv Gosain at a deposition and on defendants’ purported nonresponse to plaintiffs’ objections to defendants’ privilege log.  Therefore, an affirmation of good faith was still required (see Tokayer v. Kosher Sports Inc., 178 A.D.3d 641, 641, 112 N.Y.S.3d 501 [1st Dept. 2019]).

Were we to reach the merits, we would find that Supreme Court's denial of plaintiffs’ motion a provident exercise of its discretion (see e.g. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Global Strat Inc., 22 N.Y.3d 877, 880, 976 N.Y.S.2d 678, 999 N.E.2d 156 [2013] [standard for CPLR 3126 motion];  Grozea v. Lagoutova, 67 A.D.3d 611, 888 N.Y.S.2d 507 [1st Dept. 2009] [standard for motion pursuant to 22 NYCRR 130–1.1]).

Plaintiffs’ factual argument that defendants failed to produce Iron Oak's general ledgers is unavailing, as it was made for the first time in their reply brief and defendants had no opportunity to respond to it (see Dannasch v. Bifulco, 184 A.D.2d 415, 417, 585 N.Y.S.2d 360 [1st Dept. 1992]).

Contrary to plaintiffs’ contention, Supreme Court implicitly rejected plaintiff's argument concerning the inadequacy of defendants’ privilege log, while leaving open the possibility of a motion challenging the specific claims of privilege.  The precedents cited by plaintiffs in support of this argument all concern a lower court's complete failure to address an argument (see e.g. Adams v. Kent Sec. of N.Y., Inc., 156 A.D.3d 588, 589, 68 N.Y.S.3d 58 [1st Dept. 2017], lv dismissed 31 N.Y.3d 1059, 77 N.Y.S.3d 328, 101 N.E.3d 969 [2018]; KSK Constr. Group, LLC v. 26 E. 64th St., LLC, 126 A.D.3d 568, 569, 7 N.Y.S.3d 29 [1st Dept. 2015]). Furthermore, the factual argument concerning the privilege log that plaintiffs pursue on appeal is not the same one they made before Supreme Court.  Thus, the argument is not properly before us (see Matter of NYC C.L.A.S.H., Inc. v. New York State Off. of Parks, Recreation & Historic Preserv., 27 N.Y.3d 174, 181, 32 N.Y.S.3d 1, 51 N.E.3d 512 [2016]).