SHEWBARAN v. NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered September 21, 2023.  The order denied the plaintiff's motion pursuant to CPLR 3126 to strike the answer of the defendants City of New York, New York City Department of Education, and New York City Board of Education.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly was injured in November 2018 while performing maintenance on a boiler in a public school when the boiler exploded.  The plaintiff commenced this action in November 2019 against the defendants City of New York, New York City Department of Education, and New York City Board of Education (hereinafter collectively the City defendants), and another defendant, to recover damages for personal injuries.  In June 2022, the parties appeared for a preliminary conference, and in an order entered June 10, 2022, the Supreme Court directed the City defendants, inter alia, to disclose the name of the manufacturer and the installer of the subject boiler on or before June 22, 2022 (hereinafter the June 2022 order).  The City defendants did not provide that information by the deadline, and a conference was held on July 6, 2022, at which the court orally directed the City defendants, among other things, to follow up to obtain the requested information no later than July 22, 2022.  On July 22, 2022, the City defendants provided the requested information.

In May 2023, the plaintiff moved pursuant to CPLR 3126 to strike the City defendants' answer for failure to comply with the June 2022 order.  The plaintiff contended that the statute of limitations on his claim had expired on July 2, 2022, and that the City defendants willfully and contumaciously refused to comply with the June 2022 order in order to prevent the plaintiff from naming additional defendants to the action.  In an order entered September 21, 2023, the Supreme Court denied the motion, finding, inter alia, that the plaintiff failed to submit an affirmation that substantively complied with 22 NYCRR 202.7 and that, in any event, the record failed to establish willful or contumacious conduct by the City defendants that would warrant the striking of their answer.  The plaintiff appeals.

Pursuant to 22 NYCRR 202.7, all motions relating to disclosure must include “an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion” (id. § 202.7[a][2] ).  “The affirmation of the good faith effort to resolve the issues raised by the motion shall indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held” (id. § 202.7[c] ).  “The good faith efforts may be explained in counsel's primary affirmation submitted in support of the motion or in a separate affirmation that serves specifically to discuss such efforts” (Steele v. Samaritan Found., Inc., 208 A.D.3d 1265, 1267, 175 N.Y.S.3d 110;  see Anuchina v. Marine Transp. Logistics, Inc., 216 A.D.3d 1126, 1128, 191 N.Y.S.3d 74).  “Failure to provide an affirmation of good faith which substantively complies with 22 NYCRR 202.7(c) warrants denial of the motion” (Winter v. ESRT Empire State Bldg., LLC, 201 A.D.3d 842, 844, 161 N.Y.S.3d 314;  see Anuchina v. Marine Transport Logistics, Inc., 216 A.D.3d at 1128, 191 N.Y.S.3d 74).  Here, the plaintiff's counsel failed to attest that any good faith efforts had been made to secure the requested discovery prior to engaging in motion practice, and the record indicates that, in fact, the plaintiff failed to undertake any such efforts, thereby warranting the denial of the motion for that reason alone (see Steele v. Samaritan Found., Inc., 208 A.D.3d at 1267, 175 N.Y.S.3d 110;  Winter v. ESRT Empire State Bldg., LLC., 201 A.D.3d at 844, 161 N.Y.S.3d 314;  Vera v. New York El. & Elec. Corp., 150 A.D.3d 927, 928, 55 N.Y.S.3d 114).

In any event, pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading, where a party “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” (id. § 3126[3] ).  As public policy strongly favors the resolution of actions on the merits whenever possible, the striking of a party's pleading is a drastic remedy which is warranted only where there has been a clear showing that the failure to comply with discovery is willful and contumacious (see Meraj v. Walgreens Co., 244 A.D.3d 842, 248 N.Y.S.3d 254;  Williams v. Staten Is. Univ. Hosp., 241 A.D.3d 989, 990, 238 N.Y.S.3d 726).  Resolution of discovery disputes and the nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is within the broad discretion of the motion court (see Farrell v. Keldiyarov, 234 A.D.3d 933, 934, 227 N.Y.S.3d 182;  Ferjuste v. 437 BMW, LLC, 219 A.D.3d 1308, 1308–1309, 195 N.Y.S.3d 781).  Here, the record does not support the conclusion that the delay in providing the requested information was due to willful and contumacious conduct of the City defendants (see Meraj v. Walgreens Co., 244 A.D.3d at 844, 248 N.Y.S.3d 254;  Korsinsky & Klein, LLP v. FHS Consultants, LLC, 214 A.D.3d 961, 964, 187 N.Y.S.3d 71).

In light of our determination, we need not reach the plaintiff's remaining contention.

Accordingly, the Supreme Court properly denied the plaintiff's motion pursuant to CPLR 3126 to strike the City defendants' answer.

IANNACCI, J.P., BRATHWAITE NELSON, WOOTEN and TAYLOR, JJ., concur.