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Carolyn BOLTIN, Plaintiff, v. BOARD OF MANAGERS OF the 447-453 WEST 18TH STREET CONDOMINIUM, Kim Pillemer, Ryan Asher, Mickael Ohana, 447-453 West 18 LP, and Madison Equities, LLC, Defendants.
The following e-filed documents, listed by NYSCEF document number (Motion 007) 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 305, 306, 307 were read on this motion to STRIKE PLEADINGS.
In this motion, the latest of numerous discovery disputes in the current property-damage action, plaintiff, Dr. Carolyn Boltin, asks this court to strike the answer of defendant Mickael Ohana. In the alternative, Boltin seeks to compel Ohana to respond to her discovery requests. Ohana cross-moves for summary judgment dismissing Boltin's claims as against him. Ohana's cross-motion for summary judgment, and the branch of Boltin's motion seeking to strike Ohana's answer, are denied. The branch of Boltin's motion seeking to compel Ohana to provide discovery responses is granted, and Boltin is awarded attorney fees under CPLR 3126.
Boltin has alleged that her condominium unit (Apartment 8D) sustained serious water damage from several leaks originating outside her unit, including from the apartment directly above (Apartment 9B). In seeking redress for that water damage, Boltin sued several defendants, including Ohana—an officer of the entity that owns Apartment 9B, Alphabet NY, LLC.1
During discovery in this action, Boltin and Ohana agreed on the terms of discovery (a bill of particulars and a document production) that Ohana would provide Boltin, following an extended telephonic conference with this court. The court issued a status-conference order giving effect to that agreement. (See NYSCEF No. 191 at 1, 4-5.) Ohana did not produce the agreed-upon discovery by the original deadline set by the conference order; Boltin instead consented to a six-week extension of that deadline. The new deadline (along with other discovery-related matters) was again memorialized in a status-conference order. (See NYSCEF No. 192.) But Ohana did not produce the agreed-upon discovery by the extended deadline, either.
Boltin brought this motion to strike Ohana's answer under CPLR 3126 or to compel Ohana under CPLR 3124 to provide the agreed-upon and court-ordered discovery. Only then did Ohana cross-move for summary judgment, contending that Boltin's claims must be dismissed as against him because he is not the title owner of Apartment 9B.
I. Ohana's Cross-Motion for Summary Judgment
This court addresses Ohana's cross-motion first, because its resolution could affect this court's handling of Boltin's motion.2 Ohana's request for summary judgment dismissing Boltin's claims against him is denied without prejudice.
Ohana's argument is, in essence, that because he does not own Apartment 9B, he cannot be held liable for any damage to Boltin's apartment due to water leaks from 9B absent piercing of the corporate veil. This argument is meritless. The record reflects that Ohana is an officer of the entity that owns Apartment 9B and has a substantial connection to that apartment. (See NYSCEF Nos. 298, 301, 303, 304.) The allegations in Boltin's complaint, considered in light of this evidence, taken as true, would be sufficient to hold Ohana liable on negligence, trespass, and nuisance theories for his own conduct relating to Apartments 9B and 8D, without any need to pierce the corporate veil. (See e.g. Am. Exp. Travel Related Services Co., Inc. v N. Atl. Resources, Inc., 261 AD2d 310, 311 [1st Dept 1999] [holding that “a corporate officer who participates in the commission of a tort may be held individually liable, regardless of whether the officer acted on behalf of the corporation in the course of official duties and regardless of whether the corporate veil is pierced”]; Modulars by Design, Inc. v DBJ Dev. Corp., 174 AD2d 885 [3d Dept 1991] [applying this principle to trespass]; Penn Cent. Transp. Co. v Singer Warehouse & Trucking Corp., 86 AD2d 826, 828 [1st Dept 1982] [holding that the owner of a company could be liable in his own right for a private nuisance because “[e]everyone who creates a nuisance or participates in the creation or maintenance thereof is liable for it”] [internal quotation marks omitted].)
It remains possible that Ohana can show, on a fuller record, that his conduct does not furnish a basis for holding him liable to Boltin. But substantial paper discovery remains outstanding from Ohana, and he has not yet been deposed. Granting summary judgment now to Ohana would be premature. (See CPLR 3212 [f].)
II. The Branch of Boltin's Motion Seeking to Strike Ohana's Answer
Boltin moves under CPLR 3126 to strike Ohana's answer for failing to provide agreed-upon and court-ordered discovery. A court may strike a party's answer “where the moving party conclusively demonstrates that the non-disclosure was willful, contumacious, or due to bad faith.” (Henderson-Jones v City of New York, 87 AD3d 498, 504 [1st Dept 2011] [internal quotation marks omitted].) Here, Ohana had a good-faith (if ultimately unpersuasive) basis to believe that he should not be required to defend Boltin's claims against him. In these circumstances, this court is not persuaded that Ohana's failure to provide discovery rises to the level needed to warrant the severe sanction of striking his answer.
It is also true, though, that given Ohana's view from the start that he is not a proper defendant here, he could—and should—have moved to dismiss or for summary judgment much earlier than he did. Ohana's delay forced Boltin to bring the current motion to enforce this court's conference orders with respect to Ohana's discovery obligations, since Ohana was still a party to the action and had not sought dismissal. This court concludes that under CPLR 3126, Ohana must pay the attorney fees and costs that Boltin incurred in preparing and filing the opening papers on this motion (NYSCEF Nos. 257-286, inclusive).
III. The Branch of Boltin's Motion Seeking to Compel Ohana to Provide Discovery
Boltin moves in the alternative to compel Ohana under CPLR 3124 to provide outstanding court-ordered discovery. As set forth below, this branch of Boltin's motion is granted.
Preliminary Conference Order
Paragraph 6(a): Motion to compel granted. The Preliminary Conference Order dated August 9, 2019, requires Ohana in paragraph 6(a) to provide “names and addresses of all eyewitnesses and notice witnesses, statement of opposing parties, and photographs, or, if none, provide an affirmation to that effect” within 30 days. (NYSCEF No. 266.) Ohana must comply with this order.
Status Conference Orders
Order Paragraphs 3(d) and 3(e): Motion to compel granted. As discussed above, this court ordered Ohana to produce documents in two separate status-conference orders from November 2020 and January 2021. Ohana must provide the following in compliance with those orders:
“All building plans, blueprints, and architectural plans depicting Apartments 9B and 8D in the condominium building, and the terrace and roof adjoining Apartment 9B, including materials in the possession of Ohana's managing agents,” and, “[a]ny documents relating to the inspection and repair of leaks into Apartment 8D, from April 1, 2014 up to and including November 13, 2018, including but not limited to engineering and architectural reports, and including materials in the possession of Ohana's managing agents, and disclosure of the names and addresses of all witnesses to (1) all repairs of water leaks into Apartment 8D, between April 1, 2014 and November 13, 2018 inclusive, and (2) all measures taken to rectify and remediate water leaks into Apartment 8D, between April 1, 2014 and November 13, 2018 inclusive.” (NYSCEF No. 276.)
Notice for Discovery and Inspection
Boltin claims that Ohana's emailed document response included a Dropbox link with documents appearing to correspond to the individual requests, but that Ohana failed to “organize and label them to correspond to the categories in the request” as required by CPLR 3122 (c). Boltin also claims that Ohana produced no responsive documents to some of the demands and instead included empty folders in the Dropbox. (See NYSCEF No. 258.) Ohana listed general objections to requests 1 through 11 in his initial response on the grounds that the requests are irrelevant to this litigation, vague, overbroad, and unduly burdensome. However, Ohana did not raise any individualized objections. (See NYSCEF No. 274.) Ohana must comply with each court-ordered discovery demand to the extent the documents are within his possession, custody, or control.
D & I Demand No.7: Motion to compel granted. Boltin requested copies of “all checks with which you paid contractors to repair any water leaks into, within, or from Apartment 9B, from the inception of your ownership of Apartment 9B until the present” and claims that Ohana produced no responsive documents to this request. Ohana must comply with this request pursuant to the November 2020 and January 2021 conference orders.
D & I Demand #8: Motion to compel granted. Boltin claims that Ohana provided a single non-responsive document in response to her request for copies of any “requests made to the Board of Managers or to any governmental regulatory authority, including but not limited to the New York City Department of Buildings and the New York City Department of Housing Preservation and Development, to make any alterations (other than ordinary decorating) in Apartment 9B .and of all responses made to such requests.” Ohana must comply with this request pursuant to the November 2020 and January 2021 conference orders.
D & I Demand #9: Motion to compel granted. Boltin seeks copies of “all documents which identify any alterations you made to the bathrooms, kitchen, or terrace of Apartment 9B at any time during your ownership of Apartment 9B, and of all documents relating to such alterations, including, but not limited to, contracts, receipts for payment, and checks.” Ohana must comply with this request pursuant to the November 2020 and January 2021 conference orders.
D & I Demand #10: Motion to compel granted. Boltin requests copies of “all documents relating to any automatic watering system/device on the terrace of Apartment 9B, including but not limited to receipts from purchase of such a system/device, instructions for using such a system/device, contracts for installation thereof and repairs thereto, and receipts/checks for payment of same.” Ohana must comply with this request pursuant to the November 2020 and January 2021 conference orders.
D & I Demand #11: Motion to compel granted. Boltin requests copies of “all documents of any nature whatsoever that you referred to in order to answer the Complaint.” Ohana must produce copies of all non-privileged documents relied upon in answering Boltin's complaint. To the extent that any responsive documents in Ohana's possession, custody, or control are privileged, Ohana should provide a privilege log.
Finally, pursuant to paragraph 3(c) of the November 2020 conference order, Ohana must provide “a reproduction, in Bates-marked form, of all documents previously produced, with references, by Bates number, to which documents are responsive to each demand within the D & I to Ohana.” (See NYSCEF No. 276.)
Verified Bill of Particulars
BOP Demands #2-5: Motion to compel granted. Ohana lists five affirmative defenses in his amended answer: failure to state a cause of action, the doctrine of estoppel, the doctrine of waiver, the doctrine of laches, and the doctrine of unclean hands. (See NYSCEF No. 273.) Boltin claims that the BOP was deficient because Ohana “provided no substantive responses as to the bases of four of the five affirmative defenses that Ohana had raised in his answer.” (NYSCEF No. 258.) Ohana stated in his response that he is not in possession, custody, or control of information responsive to these requests. As this court previously directed (see NYSCEF No. 276), Ohana must supplement his responses to these BOP demands to set forth in reasonable detail the basis for his assertions that Boltin's claims are barred by the doctrines of estoppel, waiver, laches, and unclean hands.
Accordingly, for the foregoing reasons it is
ORDERED that Ohana's cross-motion under CPLR 3212 seeking dismissal of Boltin's claims against him is denied; and it is further
ORDERED that the branch of Boltin's motion under CPLR 3126 asking this court to strike Ohana's answer is granted only to the extent that Ohana must pay the reasonable attorney fees and costs that Boltin incurred in preparing and filing her opening papers on this motion (NYSCEF Nos. 257 through 286), with the amount of those fees to be carried with the case and determined following trial or the resolution of any dispositive motion as to Boltin's claims against Ohana, and this branch of Boltin's motion is otherwise denied; and it is further
ORDERED that the branch of Boltin's motion under CPLR 3124 asking this court to compel Ohana to supplement his discovery responses is granted, and Ohana must, within 30 days of entry of this order, provide supplemental discovery responses and produce documents as set forth above; and it is further
ORDERED that the parties are directed to meet and confer on an appropriate, mutually convenient date for Ohana's deposition, to be held after the deadline for Ohana to serve his supplemental discovery responses and document production; and it is further
ORDERED that the parties shall appear before this court for a telephonic status conference on July 22, 2022.
1. Unraveling the issue of the true owner of Apartment 9B (and thus the proper defendants for harm alleged to have resulted from water leaks originating in the apartment) entailed substantial effort on Boltin's part and delayed the prosecution of her claims against Alphabet and Ohana. (See Boltin v. Board of Mgrs. Of the 447-453 W. 18th St. Condominium, 2020 NY Slip Op 30317[U], at *1-*2 [Sup Ct, NY County Feb. 3, 2020].)
2. This court is not persuaded by Boltin's contention that the motion to strike should be decided first because granting the motion to strike would obviate the need to consider Ohana's request for summary judgment. If Ohana were correct that he is not a proper defendant here, it would be inappropriate to strike his answer and pave the way to holding him liable on Boltin's claims against him. That said, as discussed further below, this court concludes that Ohana is a proper defendant here.
Gerald Lebovits, J.
Response sent, thank you
Docket No: Index No. 655633/2018
Decided: July 07, 2022
Court: Supreme Court, New York County, New York.
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