LAMA 3681 v. 3681 BROADWAY HOUSING DEVELOPMENT FUND CORPORATION 3681 HDFC 3681 HFDC (2020)

This discovery motion arises out of an action brought by shareholders of a cooperative housing corporation against the cooperative corporation (defendant 3681 Broadway Housing Development Fund Corporation), its Board, and the members of the Board. Defendants move to strike plaintiffs' complaint as a sanction under CPLR 3126 for failure to provide discovery, or in the alternative, move to compel plaintiffs under CPLR 3124 to respond to defendants' interrogatories and document demands. Defendants' motion to strike is denied; the motion to compel is granted.¹

As an initial matter, it is undisputed that plaintiffs refused to respond to defendants' discovery requests; and also that plaintiffs instead promptly served notices of rejection of those requests. (See NYSCEF Nos. 120, 123.) The question here, in essence, is whether plaintiffs were entitled to refuse to respond to the requests, as they maintain, or whether this court should compel plaintiffs now to provide responses.² This court concludes that plaintiff must respond to defendants' discovery requests.

Plaintiffs initially contended that this court barred defendants from serving discovery requests because the court's conference order dated August 14, 2019, had crossed out a notation seeking to set a schedule for service of "additional supplemental discovery demands." (Status Conference Order, NYSCEF No. 118.) This court does not agree that anything in the conference order, including the striking-out of "additional supplemental discovery demands," constituted a determination of this court barring defendants from serving discovery requests.

Plaintiffs also argue that defendants have, in substance, waived their right to serve discovery requests, by consistently failing to meet deadlines in prior conference orders for serving those requests. (See NYSCEF No. 174.) This court disagrees. Defendants' delay in serving discovery requests is admittedly substantial. This court concludes, though, that in the circumstances of this case, this delay did not rise to the level of an affirmative waiver of the right to seek discovery—particularly since the parties have been actively litigating the action over that period (including a substantial document production by defendants). Plaintiffs also do not identify any prejudice that would result from having to respond now to defendants' discovery requests.

Accordingly, for the foregoing reasons, it is

ORDERED that the branch of defendants' motion seeking under CPLR 3126 to strike plaintiffs' complaint is denied; and it is further

ORDERED that the branch of defendants' motion seeking under CPLR 3124 to compel plaintiffs to respond to defendants' discovery requests dated September 4, 2019, and September 10, 2019, is granted; and it is further

ORDERED that plaintiffs shall serve responses and/or objections to those requests within 60 days from entry of this order on NYSCEF. This court also remains available to assist the parties with any discovery-related difficulties or disputes. Should an issue arise in the course of preparing or producing discovery responses and/or objections on which the parties feel the court can provide assistance, the parties may contact chambers (by email sent to mhshawha@nycourts.gov) to schedule a conference.

FOOTNOTES

1.   Under the April 8, 2020, administrative order issued by Chief Administrative Judge Lawrence Marks (AO/85/20), this court is to decide fully submitted motions in pending cases like this one.

2.   Under the circumstances presented here—including the fact that plaintiffs promptly served rejection notices and that plaintiffs have not previously failed to respond to discovery requests— this court would decline to impose discovery sanctions under CPLR 3126 regardless.

Gerald Lebovits, J.