PARK v. FOOD BAZAAR SUPERMARKET (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Robin K. Sheares, J.), dated October 3, 2024, and (2) an order of the same court dated January 16, 2025.  The order dated October 3, 2024, insofar as appealed from, granted that branch of the defendants' motion which was to preclude the plaintiff from offering evidence, testifying at trial, or submitting an affidavit in response to any dispositive motion.  The order dated January 16, 2025, denied the plaintiff's motion for leave to renew and reargue his opposition to that branch of the defendants' prior motion which was to preclude the plaintiff from offering evidence, testifying at trial, or submitting an affidavit in response to any dispositive motion and granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the appeal from so much of the order dated January 16, 2025, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the appeal from so much of the order dated January 16, 2025, as denied that branch of the plaintiff's motion which was for leave to renew is dismissed as academic in light of our determination on the appeal from the order dated October 3, 2024, and it is further,

ORDERED that the order dated October 3, 2024, is reversed insofar as appealed from, on the law, and that branch of the defendants' motion which was to preclude the plaintiff from offering evidence, testifying at trial, or submitting an affidavit in response to any dispositive motion is denied;  and it is further,

ORDERED that the order dated January 16, 2025, is reversed insofar as reviewed, on the law, and the defendants' motion for summary judgment dismissing the complaint is denied;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The plaintiff commenced this action against the defendants to recover damages for injuries he allegedly sustained when he was struck by a pallet that was pulled by a chain and forklift operated by the defendants.  The defendants interposed an answer and served combined discovery demands upon the plaintiff.  On or about December 29, 2021, the plaintiff served a verified bill of particulars and a response to the defendants' combined demands.

Thereafter, in an order dated August 15, 2022, the Supreme Court, inter alia, directed the parties to provide all outstanding responses to discovery and inspection requests within 20 days (hereinafter the August 2022 order) and directed the plaintiff to file a note of issue on or before September 15, 2023.  The August 2022 order provided, in relevant part, that the “[f]ailure to comply with this order will result in the non-complying party being precluded from offering evidence, testifying at trial, or submitting an affidavit in response to any dispositive motion, upon further motion for same, pursuant to CPLR 3126(2).”  On or about September 14, 2023, the plaintiff filed a note of issue.

Thereafter, the defendants moved, among other things, to vacate the note of issue.  In an order dated March 20, 2024, the Supreme Court, inter alia, granted, “without opposition,” that branch of the defendants' motion which was to vacate the note of issue (hereinafter the March 2024 order).  The court, among other things, directed the plaintiff to “submit complete responses to Defendants' Combined Discovery Demands on or before 4/26/24.”  The March 2024 order provided that the plaintiff's “failure to comply without good cause shown may result in sanctions upon further motion by defendant.”

In May 2024, the defendants moved, inter alia, to preclude the plaintiff from offering evidence, testifying at trial, or submitting an affidavit in response to any dispositive motion.  In an order dated October 3, 2024, the Supreme Court, among other things, granted that branch of the motion.

In October 2024, the defendants moved for summary judgment dismissing the complaint.  Thereafter, the plaintiff moved for leave to renew and reargue his opposition to that branch of the defendants' prior motion which was to preclude the plaintiff from offering evidence, testifying at trial, or submitting an affidavit in response to any dispositive motion.  In an order dated January 16, 2025, the Supreme Court granted the defendants' motion and denied the plaintiff's motion.  The plaintiff appeals from the order dated October 3, 2024, and the order dated January 16, 2025.

“A conditional order of preclusion requires a party to provide certain discovery by a date certain, or face the sanctions specified in the order” (White v. Bical Dev., Inc., 229 A.D.3d 586, 587, 214 N.Y.S.3d 176 [internal quotation marks omitted];  see Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 79, 917 N.Y.S.2d 68, 942 N.E.2d 277).  “When a litigant fails to comply with the terms of a conditional order of preclusion, the terms of that order become absolute” (White v. Bical Dev., Inc., 229 A.D.3d at 587, 214 N.Y.S.3d 176 [internal quotation marks omitted] ).  Here, contrary to the defendants' contention, the Supreme Court erred in finding that the August 2022 order was a conditional order of preclusion, as the August 2022 order was not self-executing but instead specifically required an additional motion pursuant to CPLR 3126 (see Barua v. IM Peculiar, Inc., 243 A.D.3d 861, 863, 246 N.Y.S.3d 240;  Degachi v. Faridi, 230 A.D.3d 634, 635, 217 N.Y.S.3d 190).  Since the August 2022 order was not a conditional order of preclusion, the plaintiff was not required to move to be relieved from it (see Williams v. Staten Is. Univ. Hosp., 241 A.D.3d 989, 991, 238 N.Y.S.3d 726;  Cooper v. Mt. Sinai Hosp., 208 A.D.3d 453, 454, 172 N.Y.S.3d 487).

Pursuant to 22 NYCRR 202.7(a), a motion 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.”  “The affirmation ‘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’ ” (Winter v. ESRT Empire State Bldg., LLC, 201 A.D.3d 842, 843–844, 161 N.Y.S.3d 314, quoting 22 NYCRR 202.7[c] ).  “ ‘Failure to provide an affirmation of good faith ․ warrants denial of the motion’ ” (Steele v. Samaritan Found., Inc., 208 A.D.3d 1265, 1267, 175 N.Y.S.3d 110, quoting Winter v. ESRT Empire State Bldg., LLC, 201 A.D.3d at 844, 161 N.Y.S.3d 314).  Here, the defendants' attorney failed to attest that any good-faith efforts in compliance with 22 NYCRR 202.7 were made prior to engaging in motion practice or to demonstrate good cause why no such conferral was held.  Therefore, the defendants' motion should have been denied on that basis (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.

In any event, the defendants' showing in support of that branch of their motion which was to preclude the plaintiff from offering evidence, testifying at trial, or submitting an affidavit in response to any dispositive motion was inadequate to warrant the subject discovery sanctions.  “ ‘Pursuant to CPLR 3126, a court may impose discovery sanctions, including the ․ preclusion of evidence, where a party “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed” ’ ” (Guardado v. K.B.G. Commercial, Inc., 209 A.D.3d 721, 722, 176 N.Y.S.3d 119, quoting Aha Sales, Inc. v. Creative Bath Prods., Inc., 110 A.D.3d 1019, 1019, 973 N.Y.S.2d 791).  “Before a court invokes the drastic remedy of precluding a party from offering evidence at trial, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious” (Giraldo v. Highmark Ind., LLC, 175 A.D.3d 654, 654–655, 108 N.Y.S.3d 865).  Here, the defendants failed to make a clear showing of a willful and contumacious failure by the plaintiff to comply with discovery demands.  The defendants' motion papers failed to identify precisely what discovery was demanded and never provided.  In addition, the August 2022 order only referred vaguely to, among other things, “authorizations,” and the March 2024 order directed the plaintiff to submit “complete responses” to the defendants' combined discovery demands without any indication of the nature of the alleged outstanding discovery.  Under the circumstances, the defendants failed to make the requisite showing justifying the Supreme Court's imposition of the subject discovery sanctions (see Cyngiel v. Krigsman, 224 A.D.3d 875, 206 N.Y.S.3d 659).

Since the plaintiff should not have been precluded from offering evidence, testifying at trial, or submitting an affidavit in response to any dispositive motion, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint (see Ortiz v. 1818 Bath Ave., LLC, 220 A.D.3d 670, 671, 197 N.Y.S.3d 293;  Fortino v. Wheels, Inc., 204 A.D.3d 756, 758, 166 N.Y.S.3d 660).

In light of the foregoing, the parties' remaining contentions need not be reached.

BRATHWAITE NELSON, J.P., CHRISTOPHER, VENTURA and GOLIA, JJ., concur.