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Supreme Court, New York,


Index No. E012018013319

Decided: September 13, 2022

Freeman Howard, P.C. Attorneys for plaintiff Paul M. Freeman, Esq., of counsel 441 East Allen Street Hudson, NY 12534 Kushnick Pallaci PLLC Attorneys for defendants Centerline Construction, Inc., Shawn H. Hancock and Charles J. Weinlein Jeffrey A. Lhullier, Esq., of counsel 630 Johnson Avenue Bohemia, NY 11716

In this contract action, with a trial scheduled for September 19, 2022, the plaintiff now moves in limine for an Order enforcing the Court's August 10, 2022 Order ("Preclusion Order"). The defendants oppose.

As background, the Preclusion Order granted the plaintiff's motion for an order of preclusion, and specifically ordering: "that defendants are precluded from producing any documentary, testamentary, or any other evidence in any form from any party or non-party related to any labor, materials, or time Ed Diaz, or any of his agents, employees, subcontractors, and/or representative, performed at 305 Tice Hill Road, Ghent, New York 12075 at trial or any hearing of this action"; and further ordering "that defendants are precluded from utilizing Ed Diaz, or any of his agents, employees, subcontractors, and/or representative, including Michael Gonzales, Juan Espinoza, Omar Carillo, Bryan Expinoza or any other witness at the time of trial or any hearing of this action. The Preclusion Order — taking notice that the Court had twice granted the plaintiff's prior motions for conditional order of preclusion — precluded the defendant from "offering any evidence which would demonstrate the existence of meritorious claim"...and struck the defendants' Answer with Counterclaim.

Now, the plaintiff tells the Court that at pretrial conference the defendants advised the Court (Mott, J.) of their intention "to call up to ten separate witnesses on their own case" and therefore the plaintiff moves in limine to preclude the defendants from offering at trial any evidence in contravention of the Preclusion Order. As noted, the defendants oppose — arguing that the "Court's preclusion order relates solely to the Defendants' case in chief, and not with respect to any possible rebuttal witnesses." The defendants further question "as to the intent of the August 10, 2022 Order...(and whether) Defendants are precluded from offering any witnesses at the trial...or the preclusion is limited to evidence and testimony as it related to Mr. Diaz...(and it) Defendant's position that the preclusion order is limited to that of the evidence and testimony as its related to Mr. Diaz and his labor, materials and time." The defendants further requests they "should be allowed the opportunity to call rebuttal witnesses with respect to Plaintiff's case in chief."

For the reasons that follow the Court grants the plaintiff's motion in limine in its entirety.

Here, the Court reminds the defendants that the Preclusion Order, in addition to precluding proof, struck their Answer and Counterclaim, finding that they had engaged in wilful and contumacious conduct in refusing to comply with the plaintiff's discovery requests — made all the more egregious by their failure to comply with the Court's two prior orders of preclusion.

However viewed, the Preclusion Order is a final Order and therefore now precludes the defendants from presenting at trial (Colonie Const. Products Inc. v Titan Idem. Co., 242 AD2d 852, 853 [3d Dept 1997]) any evidence "in any form from any party or non-party related to the labor and materials" involved in the work performed at the plaintiff's property. The Preclusion Order also struck the defendants' Answer and Counterclaims and therefore the defendants have no case in chief — meaning that at trial they are "precluded from introducing any evidence...tending to defeat the plaintiff's cause of action...(and therefore are) deemed to admit all traversable allegations in the complaint, including the basic allegation of liability" ( Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008], internal quotations and citations omitted). Simply stated, at trial the defendants are limited to cross examination of the plaintiff's witnesses, and are precluded from offering any evidence on their own.

Lastly, while whether "to allow rebuttal evidence is a matter with the trial court's discretion (Young v Strong, 118 AD2d 974 [3d Dept 1986])), there is no basis in law or fact for the Court to now permit the defendants to offer at trial as "rebuttal witnesses" the very same witnesses it precluded in the Preclusion Order (Dani Michaels, Inc. v Design 2000, NY, 4 AD3d 193 [1st Dept 2004]).

Also, given the Preclusion Order, if the defendants wanted to call any witnesses at trial, the proper procedure would have been to move to reargue, demonstrate a reasonable excuse for their failure to produce the discovery required of them, and also a meritorious defense — which they simply failed to do.

Accordingly, it is hereby

ORDERED, that the Court's August 10, 2022 Order is confirmed, including that the defendants are precluded from producing any evidence or calling any witnesses at trial for any purpose, including their direct case, the defense of the case, or on rebuttal.

This constitutes the Decision and Order of the Court. This original Decision and Order is filed by the Court with NYSCEF, which shall not constitute filing, entry and Notice of Entry under CPLR 2220. Counsel for plaintiff is not relieved of the responsibility of the rule with respect to filing, entry and Notice of Entry.

Dated: September 13, 2022 at Troy, NY


Henry F. Zwack

Acting Supreme Court Justice

Henry F. Zwack, J.

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