REGAL JEWELRY AND GIFT SHOP LLC v. KLEIN (2020)

Plaintiff in this action, Regal Jewelry and Gift Shop LLC (Regal), has sued defendant, Lloyd Klein. Regal claims that Klein and nonparty Jocelyn Wildenstein arranged to purchase $268,000 in fine jewelry from Regal but, after receiving the jewelry, failed either to pay or to return the purchased pieces. Regal is asserting claims in breach-of-contract, conversion, goods-sold-and-delivered, fraud, unjust enrichment, and quantum meruit.

Klein served interrogatories aimed at obtaining information about the ownership of the jewelry that Regal assertedly sold to him. (See NYSCEF No. 21.) Regal undisputedly did not respond to those interrogatories, and instead moved for summary judgment on the existing record. In opposing summary judgment, Klein argues, in effect, that given the outstanding discovery granting summary judgment would be premature under CPLR 3212 (f). This court agrees.

The question of who owned the jewelry at the time of the alleged transaction between Regal, Klein, and Wildenstein is material to Regal's fraud and contract claims (because that would go to whether Regal had a legitimate right to sell the jewelry by contract to begin with) and to Regal's conversion claim (because it would go to whether Regal had a superior right to legitimate possession of the jewelry that Klein and Wildenstein interfered with). On reply, Regal argues that this ownership-related discovery is immaterial because the question of ownership is not legitimately in dispute. (See NYSCEF No. 55 at 2; NYSCEF No. 56 at 6-12.) This court is not sure, however, that the documents supplied by Regal on reply put the issue of ownership beyond dispute. Regardless, the court is disinclined to treat materials submitted only on reply as having definitively settled an evidentiary issue for purposes of CPLR 3212 (f). (Cf. Migdol v. City of New York, 291 A.D.2d 201, 201 [1st Dept. 2002] [holding that an affidavit submitted on reply “was properly rejected by the motion court since it sought to remedy these basic deficiencies in appellant's prima facie showing rather than respond to arguments in plaintiff's opposition papers”].)

A trial court has discretion under CPLR 3212 (f) to deny the motion for summary judgment as premature or to stay the motion pending further discovery. (See Billy v. Consolidated Mach. Tool Corp., 51 N.Y.2d 152, 163-164 [1980].) Here, the discovery at issue is a set of discrete, limited interrogatories. This court concludes that in these circumstances, a stay of the motion, rather than a without-prejudice denial of the motion as premature, would best serve the interests of efficiency and judicial economy. Regal shall respond to Klein's outstanding interrogatories relating to ownership; the parties shall each have an opportunity to file brief submissions once the interrogatories have been responded to; and this court will then treat the motion as fully submitted and ripe for decision.

Accordingly, it is hereby

ORDERED that the determination of Regal's motion under CPLR 3212 for summary judgment is stayed pending the completion of limited further discovery in the form of Klein's third set of interrogatories dated September 18, 2019, and limited further briefing; and it is further

ORDERED that Regal shall respond to Klein's third set of interrogatories within 30 days from the date of this order; and it is further

ORDERED that Klein may file a surreply, of no more than 2,500 words and limited to the issue of ownership of the jewelry, within 30 days of receiving Regal's response to the third set of interrogatories; and that Klein shall also simultaneously provide the court with a copy of any surreply by email to mhshawha@nycourts.gov; and it is further

ORDERED that Regal may file a surrebuttal to any surreply filed by Klein, of no more than 2000 words and limited to the issue of ownership of the jewelry, within 15 days of the filing of the surreply; and that Regal shall also simultaneously provide the court with a copy of any surrebuttal by by email to mhshawha@nycourts.gov.

Gerald Lebovits, J.