MARVIN GOLDBERG v. Hillary Schwartzberg et al., Defendants. (2023)

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered August 18, 2021, which denied defendants Law Offices of Raymond Schwartzberg & Associates, PLLC and Raymond Schwartzberg's motion to dismiss the action pursuant to CPLR 3126(3) and 3042(b), unanimously affirmed, without costs.  Order, same court and Justice, entered August 18, 2021, which granted plaintiffs’ motion for a conditional order of preclusion pursuant to CPLR 3126, unanimously affirmed, without costs.

The court providently exercised its discretion in denying defendants’ motion to dismiss the action pursuant to CPLR 3126(3) and 3042(b).  Plaintiffs served their bill of particulars within the time required by the court and provided documents for each case for which defendants allegedly failed to pay referral fees pursuant to the parties’ purported fee-sharing agreement.  Even if plaintiffs’ bill of particulars was inadequate and other discovery responses untimely, defendants had not conclusively shown that these failures were willful or contumacious (see Christian v. City of New York, 269 A.D.2d 135, 137, 703 N.Y.S.2d 5 [1st Dept. 2000]).  Plaintiffs were not required to submit an affidavit of merit absent a conditional order of dismissal or default, and the statute does not expressly require it (Commissioners of State Ins. Fund v. Valenzano, 175 A.D.2d 687, 688, 572 N.Y.S.2d 681 [1st Dept. 1991]).

The court also providently exercised its discretion in granting plaintiffs’ motion for a conditional order of preclusion (CPLR 3126) given defendants’ failure to respond to plaintiff's discovery demands despite two followup letters (Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 82, 917 N.Y.S.2d 68, 942 N.E.2d 277 [2010];  Rachimi v. Sacher, 172 A.D.3d 636, 99 N.Y.S.3d 619 [1st Dept. 2019]).

Defendants’ arguments for dismissal of the action on the merits were not properly raised because defendants noticed only a motion pursuant to CPLR 3126 and 3042(b).  Thus, the court properly declined to consider these arguments.

Motion for stay pending determination of appeal, denied.