Elvis Carela, Plaintiff(s), v. AND BRIAN ROSENBLUM (2026)

In this action for unpaid wages pursuant to the New York Labor Law, plaintiff moves for an order pursuant to CPLR § 3126, striking defendants' answer for their failure to comply with this Court's so-ordered stipulation dated November 12, 2025, which contained a conditional order striking defendants' answer upon failure to provide the discovery listed therein by a date certain. Plaintiff avers that because defendants failed to timely provide the discovery prescribed by the so-ordered stipulation, he is entitled to the relief prescribed therein. Defendants oppose the instant motion asserting that although they did not timely comply with the so-ordered stipulation, such failure was neither willful nor contumacious, and that, in any event, plaintiff has waived his right to enforce the so-ordered stipulation.

For the reasons that follow hereinafter, plaintiff's motion is granted.

The instant action is for violations of the New York Labor Law (NYLL) for the failure to pay overtime wages, failure to pay wages on time, failure to provide wage notices, and the failure to provide accurate wage statements. The complaint alleges that, on May 2017, defendants hired plaintiff as a technician, whose duties included operating a board during light shows and loading and unloading equipment. Plaintiff worked 40 hours per, was paid $40 per hour, and was paid such wage for all hours worked in excess of 40 hours per week. Despite the requirements of the NYLL, defendants never paid plaintiff the required rate for any overtime work performed by him. Additionally, defendants did not pay plaintiff his wages with the frequency required by the NYLL. Lastly, defendants failed to provide plaintiff with the wage notices and wage statements required by the NYLL. Based on the foregoing, plaintiff interposes four causes of action. The first is for violation of NYLL § 191, et seq., wherein it is alleged that in failing to pay plaintiff the overtime rate required by law, defendants violated the NYLL. The second cause of action is also for violation of NYLL § 191, et seq., wherein it is alleged that in failing to pay plaintiff his wages in a timely manner, defendants violated the NYLL. The third cause of action is for violation of NYLL § 195(1), wherein it is alleged that in failing to provide plaintiff with wage notices, defendants violated the NYLL. The last cause of action is also for violation of NYLL § 195(1), wherein it is alleged that in failing to provide plaintiff with wage statements, defendants violated the NYLL.

On January 9, 2025, the Court issued a Preliminary Conference Order, wherein the parties were directed to, inter alia, provide responses to discovery demands by March 28, 2025.

On June 9, 2025, the Court issued a Compliance Conference Order wherein, the parties were again directed to provide responses to any outstanding discovery demands within 45 days thereof.

On November 12, 2025, the Court issued a so-ordered stipulation, wherein, in addition to conducting depositions by December 11, 2025, the Court directed that defendants provide a host of document discovery by November 27, 2025 or a Jackson Affidavit  ¹ with respect to the same. The foregoing so-ordered stipulation required that defendants provide "[plaintiff's] paystubs W2s from 2017 and 2018 . . . All records regarding the hours worked [by plaintiff], including emails . . . All records related to [plaintiff's] work on projects outside of New York City, including records regarding the hotels he stayed at." The so-ordered stipulation also stated that "[i]n the event that [defendants] fail to provide the written discovery identified above by 11/27/25, their answer will be stricken upon [plaintiff's] application to the Court."

On November 12, 2025, the Court issued a Decision and Order whereby plaintiff's application to strike defendants' answer for failure to provide discovery was withdrawn pursuant to the so-ordered stipulation issued on that same date.

On February 18, 2026, the Court issued a so-ordered stipulation directing that depositions occur by February 26, 2026. The so-ordered stipulation also indicated that the failure to abide by the directives in the so-ordered stipulation "would result in the preclusion of the defaulting party's testimony at trial."

Standard of Review

"The purpose of disclosure procedures is to advance the function of a trial, to ascertain truth and to accelerate the disposition of suits" (Rios v Donovan, 21 AD2d 409, 411 [1st Dept 1964]). Accordingly, our courts possess wide discretion to decide whether information sought is "material and necessary" to the prosecution or defense of an action (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). The terms

material and necessary, are, in our view, to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason. CPLR 3101 (subd. [a]) should be construed, as the leading text on practice puts it, to permit discovery of testimony which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable

(id. at 406 [internal quotation marks omitted]). In other words, information that is relevant to an issue in a case is discoverable (Wadolowski v Cohen, 99 AD3d 793, 794 [2d Dept 2012] ["It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims, and unsubstantiated bare allegations of relevancy are insufficient to establish the factual predicate regarding relevancy."]; Crazytown Furniture, Inc. v Brooklyn Union Gas Co., 150 AD2d 420, 420 [2d Dept 1989]). Whether information is discoverable does not hinge on whether the information sought is admissible. Instead, information is discoverable merely if it "may lead to the disclosure of admissible proof" (Twenty Four Hour Fuel Oil Corp. v Hunter Ambulance, 226 AD2d 175, 175 [1st Dept 1996]). However, "unlimited disclosure is not mandated, and the court may deny, limit, condition, or regulate the use of any disclosure device to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" (Diaz v City of New York, 117 AD3d 777, 777 [2d Dept 2014]). Thus, the trial court has broad discretion in determining the scope and breadth of discovery, must supervise disclosure and set reasonable terms and conditions therefor (id.). Absent an improvident exercise of discretion, the trial court's determinations should not be disturbed on appeal (id.).

Notably, for purposes of discovery, generally the determination of whether the information sought is relevant hinges on the allegations made by the parties in their pleadings (Bayview Loan Servicing, LLC v Charleston, 175 AD3d 1229, 1231 [2d Dept 2019] ["To prevail on its motion, the defendant was required to satisfy the threshold requirement of demonstrating that the disclosure sought is material and necessary to affirmative defense alleging that the plaintiff lacked standing to commence this action" [internal quotation marks omitted].; Anonymous v High School for Envtl. Studies, 32 AD3d 353, 358 [1st Dept 2006] [Court ordered compliance with plaintiff's discovery demands where "[p]laintiff's complaint contains allegations supporting each of plaintiff's document requests."]; U.S. Bank Nat. Ass'n v Ventura, 130 AD3d 919, 920 [2d Dept 2015]; Bravo v Vargas, 113 AD3d 577, 578 [2d Dept 2014] ["A party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records under the liberal discovery provisions of the CPLR when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue. Here, the plaintiff affirmatively placed her entire medical condition in controversy through the broad allegations of physical and mental injuries that were contained in her complaint and bill of particulars, and made during her deposition" [internal citations and quotation marks omitted].).

A party seeking discovery bears the burden of establishing that the discovery sought is material and necessary or likely to yield information that is material and relevant (Forman v Henkin, 30 NY3d 656, 661 [2018]; Wadolowski at 794). By contrast, if the discovery sought is opposed because it is not discoverable because it is absolutely immune from disclosure, the party opposing disclosure must establish the same (Forman at 662; Spectrum Sys. Intern. Corp. v Chem. Bank, 78 NY2d 371, 377 [1991]).

Commensurate with the court's ability to order disclosure is its power to issue sanctions for the failure to comply with an order mandating disclosure (Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010] ["But there is also a compelling need for courts to require compliance with enforcement orders if the authority of the courts is to be respected by the bar, litigants and the public."]). Indeed,

[a]s this Court has repeatedly emphasized, our court system is dependent on all parties engaged in litigation abiding by the rules of proper practice. The failure to comply with deadlines not only impairs the efficient functioning of the courts and the adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent. Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution. Furthermore, those lawyers who engage their best efforts to comply with practice rules are also effectively penalized because they must somehow explain to their clients why they cannot secure timely responses from recalcitrant adversaries, which leads to the erosion of their attorney-client relationships as well. For these reasons, it is important to adhere to the position we declared a decade ago that 'if the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity'

(id. at 81).

Because "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity" (Kihl v Pfeffer, 94 NY2d 118, 123 [1999]), pursuant to CPLR § 3126,

[i]f any party, or a person . . . refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them . . . an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or . . . an order striking out pleadings or parts thereof.

It is well settled that "[t]he nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court's discretion" (Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 738 [2d Dept 2012]). Striking a party's pleading for failure to provide discovery, however, is an extreme sanction, and warranted only when the failure to disclose is willful and contumacious (Bako v V.T. Trucking Co., 143 AD2d 561, 561 [1st Dept 1999]). Similarly, since the discovery sanction imposed must be commensurate with the disobedience it is designed to punish, the less drastic sanction of preclusion is also only appropriate when there is a clear showing that a party has willfully and contumaciously failed to comply with court-ordered discovery (Zakhido at 739; Assael v Metropolitan Transit Authority, 4 AD3d 443, 444 [2d Dept 2004]; Pryzant v City of New York, 300 AD2d 383, 383 [2d Dept 2002]). Willful and contumacious behavior can be readily inferred upon a party's repeated non-compliance with court orders mandating discovery (Pryzant at 383). When a party adopts a pattern of willful non-compliance with discovery demands (Gutierrez v Bernard, 267 AD2d 65, 66 [1st Dept 1999]) and repeatedly violates discovery orders, thereby delaying the discovery process, the striking of pleadings is warranted (Moog v City of New York, 30 AD3d 490, 491 [2d Dept 2006]; Helms v Gangemi, 265 AD2d 203, 204 [1st Dept 1999]). Stated differently, discovery sanctions should ensue when there is a willful failure to "disclose information that the court has found should have been disclosed" (Byam v City of New York, 68 AD3d 798, 801 [2d Dept 2009]).

Where the failure to disclose is neither willful nor contumacious, and instead constitutes a single instance of non-compliance for which a reasonable excuse is proffered, the extreme sanction of striking of a party's pleading is unwarranted (Palmenta v Columbia University, 266 AD2d 90, 91 [1st Dept 1999]). Nor is the striking of a party's pleading warranted merely by virtue of "imperfect compliance with discovery demands" (Commerce & Industry Insurance Company v Lib-Com, Ltd, 266 AD2d 142, 144 [1st Dept 1999]).

Instead of an outright sanction, a court can issue a conditional order which

is one that grants the motion and imposes the sanction unless within a specified time the resisting party provides the disclosure. The new time period, set by the court in the order disposing of the 3126 motion, will usually run from the time a copy of the order is served on the recalcitrant party with notice of its entry. The order may itself set the time and place of the disclosure, or leave that to the movant, perhaps with only an outside date set as a warning to the resisting party

(Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3126:10). Significantly, a self-executing conditional order is absolute and requires the imposition of the conditional sanction prescribed therein when it is established that the discovery ordered by the same was not timely provided (Ubozoh v Mueller, 204 AD3d 485, 485 [1st Dept 2022] ["Upon plaintiff's failure to comply with the portion of a self-executing preclusion order directing her to provide defendants with a bill of particulars and HIPAA-compliant medical authorizations within a specified time, the order became absolute and precluded plaintiff from offering evidence as to any of her alleged injuries or other damages."]; see Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008]; Zouev v City of New York, 32 AD3d 850, 850 [2d Dept 2006]; Marrone v Orson Holding Corp., 302 AD2d 371, 371 [2d Dept 2003]).

In order to prevent the sanction conditionally imposed by a conditional order, the noncomplying party must demonstrate a reasonable excuse for failing to comply with the order and the existence of a meritorious claim or defense (Gibbs at 80; Marrone at 371; Macancela v Pekurar, 286 AD2d 320, 321 [2d Dept 2001]; Mann v Dachel, 210 AD2d 461, 462 [2d Dept 1994]; Becerril by Francis v Skate Way Roller Rink, Inc., 184 AD2d 365, 366 [1st Dept 1992]; Ramos v Lapommeray, 140 AD2d 286, 288 [1st Dept 1988]; Smith by Smith v Lefrak Org., Inc., 96 AD2d 859, 860 [2d Dept 1983], affd sub nom. Smith v Lefrak Org., Inc., 60 NY2d 828 [1983]). Establishing the merits of the claim or defense requires an affidavit of merit from the party himself/herself (Becerril at 366 ["absent an excuse for failure to comply with a conditional order of preclusion and to submit an affidavit of merit, denial of summary dismissal of the claim is an abuse of discretion."]; Ramos at 288 ["Besides not explaining the delay, the plaintiff has not submitted an affidavit of merits."]), or in the case of an action for medical malpractice, from an expert establishing malpractice (Gibbs at 80 ["In cases involving a medical malpractice cause of action, 'expert medical opinion evidence is required to demonstrate merit' under the second requirement."]; Canter v Mulnick, 93 AD2d 751, 752 [1st Dept 1983], affd, 60 NY2d 689 [1983] ["There is no showing of merit here. Plaintiff Jack Canter's affidavit fails to establish any causal link between defendant's acts or omissions and the subsequent periodontal difficulties. In seeking to excuse the failure to serve a medical malpractice bill of particulars in a timely fashion, a plaintiff must establish the legal merits of his case by an affidavit from a physician competent to attest to the meritorious nature of his claim."]).

Notably, while the proponent of an application seeking discovery sanctions is generally required to establish that the failure to provide discovery was willful and contumacious, the proponent of an order seeking to enforce a conditional order is not required to make such showing (630 W. 52nd LLC v Fresh Inventory Services, LLC, 234 AD3d 403, 403 [1st Dept 2025] ["In light of the conditional order, we also reject plaintiff's argument that the court should have considered prejudice and willfulnes."]; Citizen Watch Co. of Am., Inc. v Zapco 1500 Inv., L.P., 216 AD3d 562, 562 [1st Dept 2023] ["Defendant's arguments that its noncompliance was not willful or contumacious is irrelevant because, where a litigant fails to comply with a conditional order the court is not required to find that its failure to comply was willful" [internal quotation marks omitted].; Ctr. Sheet Metal v Cannon Design, Inc., 185 AD3d 507, 508 [1st Dept 2020]; Keller v Merchant Capital Portfolios, LLC, 103 AD3d 532, 533 [1st Dept 2013]).

An action dismissed pursuant to CPLR § 3126, because a plaintiff repeatedly fails to comply with court ordered discovery, is generally akin to dismissal for failure to prosecute and thus cannot be recommenced pursuant to CPLR § 205(a), which under certain circumstances, allows an action to be recommenced within six months of dismissal even if the statute of limitations has expired (Andrea v Arnone, Hedin, Casker, Kennedy and Drake, Architects and Landscape Architects, P.C., 5 NY3d 514, 518 [2005] ["We hold that dismissal of an action for failure to comply with discovery orders is a dismissal 'for neglect to prosecute the action' within the meaning of CPLR 205(a). Therefore, these actions, filed after the dismissal of previous actions by the same plaintiffs, are not saved by CPLR 205(a) from the bar of the statute of limitations."]; Flans v Fed. Ins. Co., 43 NY2d 881, 882 [1978] ["Plaintiffs, having moved to Israel, failed to appear for an examination before trial and on the date set for trial. Under those circumstances, coupled with the protracted and repeated delays by plaintiffs, dismissal of the original, timely action was inferentially for neglect to prosecute within the meaning of CPLR 205 (subd. (a))"[internal quotation marks omitted].; Ivory v Ekstrom, 98 AD2d 763, 764 [2d Dept 1983] ("Nevertheless, under the specific facts herein, i.e., "the protracted and repeated delays by plaintiff, dismissal of the original, timely action was inferentially for neglect to prosecute within the meaning of CPLR 205 (subd [a] )]" [internal quotation marks omitted].).

Discussion

Plaintiff's motion seeking an order striking defendants' answer is granted. Significantly, plaintiff establishes that by failing to provide all the written discovery listed within the so-ordered stipulation dated November 11, 2025 until almost four months thereafter, defendants failed to comply with the Court's conditional order, which per the so-ordered stipulation, would result, upon noncompliance, in the striking of defendants' answer.

In support of the instant motion, plaintiff submits his deposition transcript memorializing his deposition on December 11, 2025. To the extent relevant, at some point during the deposition, defendant's counsel questioned plaintiff regarding emails. The foregoing prompted counsel for plaintiff to question the origin of the foregoing emails. Counsel for defendants stated that the emails had been provided to plaintiff. However, plaintiff's counsel asserted that he had not received any emails. As a result, the deposition was terminated, adjourned, and counsel for defendants noted

[s]o, counselors took a break from the deposition. My office provided Counsel with what I believe we provided in the middle of August. To which, Counsel said he does not recall seeing them, that these were not provided to him. That being the case, in order for him to review the documents with his client we're going to adjourn today's deposition, both parties. Mr. Carela's will continue and Mr. Rosenblum's will begin on the 29th of December, at 10:00. We can do 10:00, instead of 10:30, if that works.

Plaintiff submits defendant BRIAN ROSENBLUM's (Rosenblum) deposition transcript memorializing his deposition on February 26, 2026. During the deposition, Rosenblum testified that job listings were provided to employees by "calender appointments that [were] created and sent out." In response to counsel for plaintiff's question regarding "a document that compiles all of the names and speaks about the work that was to be completed," Rosenblum testified that such information would "all [be] in that calendar." During the deposition, counsel for plaintiff noted that "I don't think that I have seen these documents. These Outlook entries that you're referencing, I don't think they have been produced by defendants." In response, counsel for defendant stated that those documents were "sent over to you the last time that we stopped. They were with all of those documents."

By counsel, plaintiff asserts that, on November 26, 2025, defendants produced the documents directed by the Court's so-ordered stipulation dated November 12, 2025 as well as a Jackson Affidavit. Believing that the documents produced were fully responsive to the so-ordered stipulation, plaintiff appeared for his deposition on December 11, 2025. Because, during the deposition, it became clear that defendants had not provided the emails about which plaintiff was questioned, the deposition was terminated. Thereafter, on the same date, defendants provided 50 pages of email correspondence regarding the hours worked by plaintiff and the projects where he performed such work. These documents had not been previously provided by defendants. Once the documents were received, on February 26, 2026, plaintiff again appeared for his deposition and the same was completed. On that same day during Rosenblum's deposition, he testified about calendar entries that had never been provided to plaintiff. After the completion of Rosenblum's deposition, defendants produced 207 separate Outlook calendar entries containing the dates on which plaintiff worked on projects, the location of such projects as well as any work performed outside New York City.

Based on the foregoing, plaintiff's motion is granted.

Again, pursuant to CPLR § 3126,

[i]f any party, or a person . . . refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them . . . an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or . . . an order striking out pleadings or parts thereof.

Striking a party's pleading for failure to provide discovery, however, is an extreme sanction, and warranted only when the failure to disclose is willful and contumacious (Bako at 561]). Similarly, since the discovery sanction imposed must be commensurate with the disobedience it is designed to punish, the less drastic sanction of preclusion is also only appropriate when there is a clear showing that a party has willfully and contumaciously failed to comply with court-ordered discovery (Zakhido at 739; Assael at 444; Pryzant at 383). Notably, willful and contumacious behavior can be readily inferred upon a party's repeated non-compliance with court orders mandating discovery (Pryzant at 383). Thus, when a party adopts a pattern of willful non-compliance with discovery demands (Gutierrez at 66) and repeatedly violates discovery orders, thereby delaying the discovery process, the striking of pleadings is warranted (Moog at 491; Helms at 204). .

Instead of an outright sanction, a court can issue a conditional order which

is one that grants the motion and imposes the sanction unless within a specified time the resisting party provides the disclosure. The new time period, set by the court in the order disposing of the 3126 motion, will usually run from the time a copy of the order is served on the recalcitrant party with notice of its entry. The order may itself set the time and place of the disclosure, or leave that to the movant, perhaps with only an outside date set as a warning to the resisting party

(Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3126:10). Significantly, a self-executing conditional order is absolute and requires the imposition of the conditional sanction prescribed therein when it is established that the discovery ordered by the same was not timely provided (Ubozoh at 485; see Wilson at 830; Zouev at 850; Marrone at 371).

Notably, while the proponent of an application seeking discovery sanctions is generally required to establish that the failure to provide discovery was willful and contumacious, the proponent of an order seeking to enforce a conditional order is not required to make such showing (630 W. 52nd LLC at 403; Citizen Watch Co. of Am., Inc. at 562; Ctr. Sheet Metal at 508; Keller at 533).

In order to prevent the sanction conditionally imposed by a conditional order, the noncomplying party must demonstrate a reasonable excuse for failing to comply with the order and the existence of a meritorious claim or defense (Gibbs at 80; Marrone at 371; Macancela at 321; Mann at 462; Becerril by Francis at 366; Ramos at 288; Smith by Smith at 860). Establishing the merits of the claim or defense requires an affidavit of merit from the party himself/herself (Becerril at 366; Ramos at 288), or in the case of an action for medical malpractice, from an expert establishing malpractice (Gibbs at 80; Canter at 752).

Here, the record establishes that pursuant to this Court's so-ordered stipulation dated November 11, 2025, defendants were required to provide a host of document discovery by November 27, 2025 or a Jackson Affidavit with respect to the same. Specifically, insofar as relevant, defendants were required to provide documents concerning "[a]ll records regarding the hours worked [by plaintiff], including emails," and "[a]ll records related to [plaintiff's] work on projects outside of New York City, including records regarding the hotels he stayed at." The so-ordered stipulation also stated that "[i]n the event that [defendants] fail to provide the written discovery identified above by 11/27/25, their answer will be stricken upon [plaintiff's] application to the Court."

Additionally, plaintiff establishes that, although on November 26,2025 defendants provided documents which were purportedly fully responsive and compliant with the Court's directives within the so-ordered stipulation, during plaintiff's deposition, it was discovered that emails about which plaintiff was questioned had not been provided. Although counsel for defendants noted that he believed that the emails in question were provided subsequent to the deposition, plaintiff was provided with 50 pages of emails that had not been provided as required by the Court's so-ordered stipulation.

Plaintiff further establishes that, on February 26, 2026, during Rosenblum's deposition, it was discovered that there existed calendar entries about which Rosenblum testified. With respect to the same, plaintiff's counsel noted that "I don't think that I have seen these documents. These Outlook entries that you're referencing, I don't think they have been produced by defendants." While, in response, counsel for defendant stated that those documents were "sent over to you the last time that we stopped. They were with all of those documents," subsequent to the deposition, defendants provided 207 Outlook calendar entries, which evinced the dates on which plaintiff worked on projects, the location of such projects as well as any work performed outside New York City, and which had not been previously exchanged.

Given the foregoing, it is clear that defendants failed to comply with the Court's so-ordered stipulation because they failed to produce the written discovery described therein by November 25, 2026. Because the failure to comply with the Court's so-ordered stipulation would, as promulgated therein, result in the striking of defendant's answer, plaintiff is entitled to the relief sought. Preliminarily, the Court notes that while plaintiff establishes that defendants violated the Court's so-ordered stipulation by failing to produce all of the emails directed therein until December 11, 2025, after plaintiff's first deposition, he has nevertheless waived the right to enforce the conditional order as a result thereof.

"A waiver is the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it (Aron Law PLLC v Town of Fallsburg, 199 AD3d 1286, 1286 [3d Dept 2021]; Homapour v Harounian, 200 AD3d 575, 574 [1st Dept 2021]; Matter of Chenango Forks Cent. School Dist. v New York State, 95 AD3d 1479, 1484, affd, 21 NY3d 255 [2013]; Peck v Peck, 232 AD2d 540, 540 [2d Dept 1996]), which must be established clearly, unmistakably, and without ambiguity (Aron Law PLLC at 1286; Matter of Chenango Forks Cent. School Dist. at 1484). Such waiver may be accomplished by express agreement or by conduct evincing an intent not to claim the advantage to which a party is entitled (Hadden v Consol. Edison Co. of New York, Inc., 45 NY2d 466, 469 [1978]; In re City of Rochester, 208 NY 188, 197 [1913] ["Waiver is usually a matter of intention as indicated by the language or conduct, and knowledge, actual or constructive, of the existence of the right or condition alleged to have been waived is an essential prerequisite to its relinquishment."]). Thus, "[a]lthough a party may waive his or her rights under an agreement or decree, waiver is not created by negligence, oversight, or thoughtlessness, and cannot be inferred from mere silence" (Peck at 540 [internal citations omitted]; Haberman v Haberman, 216 AD2d 525, 527 [2d Dept 1995]; Thompson v Lindblad, 125 AD2d 460, 461 [2d Dept 1986]; Agati v Agati, 92 AD2d 737, 737 [4th Dept 1983], affd, 59 NY2d 830 [1983]).

Here, despite plaintiff's failure to timely comply with the Court's so-ordered stipulation directing the exchange of all relevant emails, which did not occur until weeks after the Court's deadline, plaintiff nevertheless agreed to appear for a deposition and did, in fact, appear for the same on February 26, 2026. Since plaintiff, as a result of the belated exchange of emails, could have sought to have defendants' answer stricken as early as December 11, 2025, when it was clear that defendants had violated the Court's so-ordered stipulation authorizing the same, plaintiff's failure to seek such relief and his agreement to appear for a deposition instead, is an affirmative relinquishment of the right to have defendants' answer stricken for the foregoing violation.

Nevertheless, because the record evinces that on February 26, 2026, defendants, for the first time, produced 207 Outlook entries evincing the dates on which plaintiff worked on projects, the location of such projects as well as any work performed outside New York City, it is clear that the failure to produce these entries on or before November 27, 2025 is a violation of the Court's so-ordered stipulation, requiring the production of all documents "[a]ll records regarding the hours worked [by plaintiff], including emails," and "[a]ll records related to [plaintiff's] work on projects outside of New York City."

Indeed, subsequent to receiving the foregoing records, plaintiff promptly made this application. Accordingly, plaintiff's motion is granted.

Nothing submitted or urged by defendants precludes the relief sought by plaintiff.

In opposition to the instant motion, plaintiff submits the portion of plaintiff's deposition transcript evincing that the same was terminated upon plaintiff's realization that the emails about which he was questioned by defendants had not been previously provided. With respect to the foregoing emails and the failure to disclose them within the time prescribed by the Court's so-ordered stipulation, defendant's counsel states that he "mistakenly thought that these documents were already previously produced." While this does not avail defendants, it merits no further discussion since as noted above, plaintiff waived the right to enforce the Court's so-ordered stipulation as a consequence of defendants' failure to timely produce the instant emails.

With respect to the failure to timely exchange the 207 Outlook calendar entries, which as urged by plaintiff, contained the dates on which, plaintiff worked on projects, the location of such projects as well as any work performed outside New York City, defendants make a series of arguments against striking their answer, all of which, are unavailing.

First, contrary to defendants' assertion, even if the failure to comply with the Court's conditional order was neither willful nor contumacious, given that defendants were bound by a conditional order, the foregoing is irrelevant. Again, while the proponent of an application seeking discovery sanctions is generally required to establish that the failure by a party to provide discovery was willful and contumacious, the proponent of an order seeking to enforce a conditional order is not required to make such showing (630 W. 52nd LLC at 403; Citizen Watch Co. of Am., Inc. at 562; Ctr. Sheet Metal at 508; Keller at 533).

Second, defendants disingenuously argue that, despite containing the dates on which plaintiff worked on projects, the location of such projects as well as any work performed outside New York City, the Outlook entries somehow fall outside the ambit of the documents listed within the Court's so-ordered stipulation. Insofar as the Court directed the exchange of "[a]ll records regarding the hours worked [by plaintiff], including emails," and "[a]ll records related to [plaintiff's] work on projects outside of New York City," defendants' argument is nothing short of specious. Clearly, the Outlook entries fall within the ambit of the discovery ordered exchanged and the failure to provide them by the deadline imposed by the so-ordered stipulation and the conditional order therein is a violation thereof.

Third, defendants contend that the relief sought ought to be denied because, subsequent to Rosenblum's deposition and upon receipt of the Outlook entries, plaintiff "did not object or take any action to address the discovery disclosures until filing the present motion. However, Plaintiff had ample opportunity to address the discovery disclosures but chose not to act. Plaintiff did not request to re-depose Brian Rosenblum or take any additional action. These were all options well within Plaintiff's control." This, of course is nonsensical and conflates defendants' obligation to comply with the Court's conditional order with plaintiff's obligation to enforce the same. While defendants had an affirmative obligation to comply with the Court's conditional order, plaintiff did not, as urged, have any obligation to allow defendants to mitigate their noncompliance, by, as urged, engaging in further discovery with respect to the Outlook entries. The only obligation plaintiff had under the conditional order was to, per its express terms, move to enforce it, which he did with the instant motion.

Lastly, counsel for defendants argues that because "[t]he Outlook calendar entries at issue were first identified during Brian Rosenblum's deposition," the failure to timely disclose them is excusable. Essentially, counsel blames his clients for failing to conduct a search of all documents falling within the ambit of the Court's so-ordered stipulation to ensure a timely exchange thereof. This, of course, cannot avail defendants. Whether the failure to timely identify the Outlook entries as responsive to the Court's so-ordered stipulation in order to timely exchange them is the fault of counsel or his clients is not dispositive. What matters is that the entries were relevant, should have, thus, been exchanged, and were exchanged belatedly. That defendants' counsel was blindsighted by defendants' failure to apprise him about the Outlook entries, does not avail him and certainly does not avail defendants.

Lastly, defendants fail to establish entitlement to the relief sought as a matter of law since they do not establish a reasonable excuse for the failure to timely tender the Outlook entries nor establish the existence of a meritorious defense.

Again, to prevent the sanction conditionally imposed by a conditional order, the noncomplying party must demonstrate a reasonable excuse for failing to comply with the order and the existence of a meritorious claim or defense (Gibbs at 80; Marrone at 371; Macancela at 321; Mann at 462; Becerril by Francis at 366; Ramos at 288; Smith by Smith at 860).

Indeed, because defendants fail to appreciate their burden on the instant motion, the only semblance of an excuse is that counsel was ignorant about the existence of the Outlook entries at issue. This, at best is tantamount to an excuse of law office failure. However, while for purposes of averting the consequences of a conditional order, "[t]he court has discretion to accept law office failure as a reasonable excuse where that claim is supported by a detailed and credible explanation of the default at issue" (Fortino v Wheels, Inc., 204 AD3d 756, 757 [2d Dept 2022]; Scholem v Acadia Realty Ltd. Partnership, 144 AD3d 1012, 1013 [2d Dept 2016]), here, the excuse proffered is conclusory. To be sure, the record is utterly bereft of what efforts counsel for defendants made to ascertain the existence of all discovery falling within the ambit of the Court's so-ordered stipulation in order to timely exchange them.

With respect to whether the defendants have a meritorious defense, not only is the same never even asserted, but, establishing the merits of the claim or defense requires an affidavit of merit from the party himself/herself (Becerril at 366; Ramos at 288), and, here, no such affidavit is submitted. It is hereby

ORDERED that defendants' answer be stricken and that this action shall be solely tried on the issue of damages. It is further

ORDERED that all parties appear for a Settlement Conference on November 18, 2026. It is further

ORDERED that plaintiff serve a copy of this Decision and Order with Notice of Entry upon defendants within 30 days hereof.

This constitutes this Court's Decision and Order.

Dated : September 17, 2026

Bronx, New York

HON. FIDEL E. GOMEZ, JSC

FOOTNOTES

1.   A Jackson Affidavit is a creation of case law, requiring that when ordered, a party who cannot locate relevant discovery provide an affidavit detailing the efforts made to locate the documents (Jackson v City of New York, 185 AD2d 768, 770 [1st Dept 1992] ["Here, after years of delay, the affidavit presented by the City made no showing as to where the subject records were likely to be kept, what efforts, if any, were made to preserve them, whether such records were routinely destroyed, or whether a search had been conducted in every location where the records were likely to be found. In short, the affidavit provided the court with no basis to find that the search had been a thorough one or that it had been conducted in a good faith effort to provide these necessary records to plaintiff."]).

Fidel E. Gomez, J.