IN RE: CONGREGATION RADIN DEVELOPMENT (2026)

DECISION & ORDER

In related proceedings pursuant to Real Property Tax Law article 7 to review real property tax assessments for the tax years 2020 to 2022, and a related action to cancel retroactive tax assessments, Congregation Radin Development, Inc., the petitioner in Matter No. 1 and the plaintiff in Matter No. 2, appeals from two orders of the Supreme Court, Rockland County (Amy S. Puerto, J.), both dated December 21, 2023.  The first order, insofar as appealed from, granted that branch of the motion of Town of Ramapo and Board of Assessment Review of the Town of Ramapo, the respondents in Matter No. 1 and defendants in Matter No. 2, and Scott Shedler, a defendant in Matter No. 2, which was pursuant to CPLR 3126 to preclude Congregation Radin Development, Inc., from producing in evidence certain items of documentary evidence, or witness or expert testimony relating to such items of documentary evidence, that it had not produced in response to discovery demands.  The second order, insofar as appealed from, granted the same relief to Town of Ramapo, Board of Assessment Review of the Town of Ramapo, and Scott Shedler and specified items of discovery that had not been produced.

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.

Congregation Radin Development, Inc. (hereinafter Congregation), owns certain real property located in the Town of Ramapo.  Congregation commenced three proceedings pursuant to Real Property Tax Law article 7 to review real property tax assessments for the tax years 2020 to 2022, as well as a related action to cancel retroactive tax assessments.  Congregation alleged, inter alia, that it was entitled to a 100% real property tax exemption for the tax years 2020 to 2022.  The proceedings and the action were joined for all purposes.

In an order dated December 21, 2022, the Supreme Court, among other things, determined that Congregation had failed to comply with certain discovery orders and directed Congregation to furnish to Town of Ramapo, Board of Assessment Review of the Town of Ramapo, and Scott Shedler (hereinafter collectively the respondents) “all documents in its possession in response to Respondents' Notice to Produce” by January 31, 2023.  Thereafter, at a compliance conference held on March 21, 2023, the court directed Congregation to provide the discovery required by the order dated December 21, 2022, which related to the 2020 tax year, and to produce the discovery related to the other years at issue by May 1, 2023.  At a subsequent compliance conference held on May 16, 2023, the court noted that Congregation was not complying with discovery demands or the directives of the court and granted the request of the respondents' counsel to seek relief pursuant to CPLR 3126.  Thereafter, the respondents moved, inter alia, pursuant to CPLR 3126 to preclude Congregation from producing in evidence certain items of documentary evidence, or witness or expert testimony relating to such items of documentary evidence, that it had not produced in response to discovery demands.  The court granted that branch of the motion, and Congregation appeals.

“Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, 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” (Borchkhadze v McMahon, 235 AD3d 944, 946 [internal quotation marks omitted];  see Matter of Selma V Kelter Trust, 244 AD3d 1214, 1216).  “Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court” (Madonna Mgt. Servs., Inc. v R.S. Naghavi, M.D., PLLC, 172 AD3d 845, 847;  see Farrell v Keldiyarov, 234 AD3d 933, 934).  “However, before a court invokes the remedy of precluding evidence, there must be a clear showing that the failure to comply with discovery was willful and contumacious” (Zavala v Rennew Holding Corp., 219 AD3d 787, 789;  see Kopelevich & Feldsherova, P.C. v Geller Law Group, P.C., 191 AD3d 853, 853).  “The willful or contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse” (Mirabile v Kuwayama, 231 AD3d 822, 823 [internal quotation marks omitted];  see Matter of Selma V Kelter Trust, 244 AD3d at 1216).

Here, Congregation's repeated failure to comply with discovery demands and orders directing discovery, without providing a reasonable excuse, supported an inference of willful and contumacious conduct (see Mirabile v Kuwayama, 231 AD3d at 824).  Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the respondents' motion which was pursuant to CPLR 3126 to preclude Congregation from producing in evidence certain items of documentary evidence, or witness or expert testimony relating to such items of documentary evidence, that it had not produced in response to discovery demands.

The parties' remaining contentions are without merit.

GENOVESI, J.P., WARHIT, GOLIA and HOM, JJ., concur.