SIRADZE v. AVB 1865 BROADWAY LLC (2022)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated December 15, 2020.  The order, insofar as appealed from, granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to preclude the defendants from testifying or offering any evidence at trial.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was pursuant to CPLR 3126 to preclude the defendants from testifying or offering any evidence at trial is denied.

The plaintiff commenced this action to recover damages for personal injuries.  In an order dated October 22, 2020, the Supreme Court, inter alia, directed the defendants to respond to outstanding discovery demands and provide court-ordered discovery no later than November 23, 2020, or be precluded from testifying or offering any evidence at trial (hereinafter the conditional order).  Thereafter, the defendants moved by order to show cause dated November 19, 2020, to extend their time to provide documents in response to the plaintiff's notice for discovery and inspection pursuant to the conditional order.  On November 23, 2020, the defendants served a response to the plaintiff's notice for discovery and inspection.  By notice of motion dated November 25, 2020, the plaintiff moved pursuant to CPLR 3126, inter alia, to preclude the defendants from testifying or offering any evidence at trial for failing to comply with, among other things, the conditional order.  In an order dated December 15, 2020, the court denied the defendants' motion and granted that branch of the plaintiff's motion.  The defendants appeal from so much of the order as granted that branch of the plaintiff's motion.

A conditional order of preclusion requires a party to provide specified discovery by a date certain or face the sanctions specified in the order (see Fortino v. Wheels, Inc., 204 A.D.3d 756, 166 N.Y.S.3d 660;  Torres v. Dayton Hudson Corp., 171 A.D.3d 827, 828, 95 N.Y.S.3d 830).  “ ‘With this conditioning, the court relieves itself of the unrewarding inquiry into whether a party's resistance was wilful’ ” (Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 82, 917 N.Y.S.2d 68, 942 N.E.2d 277, quoting Siegel, N.Y. Prac § 367 [6th ed];  see Felice v. Metropolitan Diagnostic Imaging Group, LLC, 170 A.D.3d 960, 962, 97 N.Y.S.3d 256).  “Where a party fails to comply with the terms of a conditional order prior to the deadline imposed therein, the conditional order becomes absolute” (Goldberg v. Breth, 189 A.D.3d 1368, 1370, 134 N.Y.S.3d 804;  see Fortino v. Wheels, Inc., 204 A.D.3d 756, 166 N.Y.S.3d 660).  “[T]he burden of establishing noncompliance rests with the party seeking preclusion” (Cannon v. 111 Fulton St. Condominium, Inc., 162 A.D.3d 838, 840, 80 N.Y.S.3d 76;  see Deer Park Assoc. v. Town of Babylon, 121 A.D.3d 738, 740, 993 N.Y.S.2d 761).

Here, the record demonstrates that the defendants timely and substantially complied with the conditional order, and therefore, the conditional order never became absolute (see Then v. New York City Tr. Auth., 99 A.D.3d 986, 952 N.Y.S.2d 458;  Pierre v. 100 Corp., 97 A.D.3d 804, 805, 949 N.Y.S.2d 423;  McGroarty v. Long Is. Coll. Hosp., 37 A.D.3d 431, 829 N.Y.S.2d 615).  Since the plaintiff failed to show that the defendants violated the conditional order, the drastic sanction of precluding the defendants from testifying or offering any evidence at trial was unwarranted (see Pierre v. 100 Corp., 97 A.D.3d at 805, 949 N.Y.S.2d 423).  Accordingly, the Supreme Court should have denied that branch of the plaintiff's motion which was pursuant to CPLR 3126 to preclude the defendants from testifying or offering any evidence at trial.

The plaintiff's remaining contentions are without merit.

DUFFY, J.P., BARROS, MILLER and CHRISTOPHER, JJ., concur.