David Cohn, Plaintiff, v. Blue Chip Painting & Contracting Inc., Defendant. (2026)

On this motion, plaintiff, David Cohn, moves under CPLR 3126 to strike the answer of defendant, Blue Chip Painting & Contracting Inc. Alternatively, plaintiff seeks to prevent defendant from relying at trial on discovery that it has not yet produced or to compel defendant to comply with its discovery demands. (See NYSCEF No. 49.) Plaintiff also seeks attorney fees and costs it incurred on this motion. The motion is granted in part and denied in part.

It is undisputed that defendant failed to respond to plaintiff's discovery requests until plaintiff filed this motion—16 months after plaintiff served the requests. And still, plaintiff says, some of the responses are insufficient and some are unanswered. The court discusses the at-issue demands below.

Document demands nos. 2, 3, 4, and 6 seek all documents prepared, executed, or received by defendant in connection with the project and all communications between the parties, with third parties, and among defendant's employees and documents concerning defendant's counterclaim. Plaintiff argues that defendants attaches only one email to its production. (See NYSCEF No. 53 at ¶ 35 [a].)

This court disagrees. Defendant refers plaintiff to more than a single email in responding to those four requests. Regardless, the demands are too broad. Plaintiff is therefore directed to narrow its demands and serve them on defendant within 30 days. Defendant then has 30 days to respond to those demands. With its responses, defendant should provide a Jackson affidavit affirming whether it searched for, but has not found, other responsive documents.

On demand nos. 7-11 and 13-14, plaintiff says that defendant has produced no documents that are responsive to those requests. The court agrees. At the same time, however, these demands are also too broad. As before, plaintiff is directed to narrow these demands and serve them on defendant within 30 days. Defendant then has 30 days to respond to those demands. With its responses, defendant should provide a Jackson affidavit.

On demand no. 15-16, and 18-27, plaintiff argues that defendant has produced no documents at all. The court agrees. However, requests 15 and 16, 22, and 24 are too broad. And request no. 27—which seeks the documents and communications defendant will use at trial—is premature.

Plaintiff may narrow its requests on document request nos. 15, 16, 22, and 24 and serve them on defendant within 30 days. Defendant then has 30 days to respond to those demands. With its responses, defendant should provide a Jackson affidavit affirming whether it searched for responsive documents. In addition, within 30 days, defendant must supplement its responses to demand nos. 18-21 and 23.

On demand no. 17, plaintiff seeks all communications with nonparty ER Painting, Inc., including any contract between defendant and ER Painting that was operative in 2023. Plaintiff asserts that defendant produced only generic subcontracts with ER Painting from over five years ago. (NYSCEF No. 53 at 8.) To the extent defendant has no other documents responsive to the request, it should provide a Jackson affidavit to that effect.¹

Plaintiff further contends that defendant's responses to interrogatory nos. 2, 3, 5, and 6 are deficient. On interrogatory no. 2, plaintiff argues that defendant did not identify any third-party vendors that performed the work at issue. (NYSCEF No. 53 at ¶ 32.) On interrogatory no. 3, plaintiff asserts that defendant's response "is deficient because it fails to identify any individuals who would potentially have relevant documents outside of Defendant's organization." (Id.) Plaintiff also contends that defendant provided no responses to interrogatory nos. 5 and 6.

The court concludes that defendant has adequately responded to interrogatory no. 2. In that interrogatory, plaintiff sought "the full name, address, telephone number, and email address of any person who has knowledge of the Project or the allegations set forth in the Complaint or Answer." Defendant has identified specific individuals. Defendant need not supplement its response to this interrogatory.

The court further concludes that plaintiff must narrow interrogatory no. 3. In that interrogatory, plaintiff seeks "the full name, address, telephone number and email address of any person who is a custodian of any Documents or Communications relating to the Project or the allegations set forth in the Complaint or Answer." This request is too broad. Defendant need not supplement its response to the interrogatory in its current form.

Finally, on interrogatory nos. 5 and 6, plaintiff seeks explanations supporting representations by defendant's regional territorial manager that (a) it provided "the agreed upon services and work" to plaintiff and (b) defendant provided the services in a "good workmanlike manner" and based on plaintiff's instructions. (See NYSCEF No. 43 at 8.) Defendant objected to these interrogatories as overbroad and premature because its discovery production is still pending. (NYSCEF No. 52 at 7-8 [responses], citing NYSCEF No. 18 [affidavit].) But given the manager's representations and the fact that responding to interrogatories is part of defendant's discovery obligations, defendant must supplement its responses to these interrogatories.

Finally, given defendant's lengthy delay in responding to plaintiff's interrogatory requests, the court concludes that plaintiff is entitled to have defendant pay the reasonable attorney fees and costs plaintiff incurred on this motion under CPLR 3126.

Accordingly, it is

ORDERED that plaintiff's motion is granted only to the extent that defendant must supplement its discovery production as set forth above; and it is further

ORDERED that plaintiff must provide its narrowed discovery requests within 30 days entry of this order; and it is further

ORDERED that defendant must supplement its responses, as described above, within 30 days of receiving plaintiff's narrowed requests; and it is further

ORDERED that defendant is required under CPLR 3126 to pay plaintiff the reasonable attorney fees incurred by plaintiff on this motion, with the amount of those fees to be determined by motion made on notice within 30 days of entry of this order.

Dated: 4/7/2026

FOOTNOTES

1.   Defendant should provide one Jackson affidavit in total to be submitted within 30 days after it receives plaintiff's narrowed demands.

Gerald Lebovits, J.