Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of plaintiff Grant Nelson (hereinafter plaintiff) filed on May 7, 2020, under motion sequence number three, for an order pursuant to CPLR 3126 (3) striking the answer of defendants CRP New York Avenue LLC, Castellan Real Estate Partners, 1084 New York D, LLC, and Liberty Place Property Management LLC (hereinafter the defendants) based on their failure to respond to discovery demands and Court Orders, and their failure to appear for court-ordered depositions. Notice of motion Affirmation in support Exhibits A-H Affirmation in opposition Exhibits A-B BACKGROUND On December 13, 2016, plaintiff commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk’s Office (hereinafter KCCO). On February 27, 2017, defendants CRP New York Avenue LLC and Liberty Place Property Management LLC jointly filed a verified answer with the KCCO. The verified complaint alleges the following salient facts. On May 5, 2015, the plaintiff was exposed to toxic molds and substances at 1084 New York Avenue (hereinafter the subject property), a property that the defendants used, controlled, owned, operated, managed, repaired and maintained. The plaintiff was diagnosed with injuries related to the toxic molds and substances, in the subject property. Plaintiff has claimed, inter alia, that the injury was caused by the defendants’ carelessness, recklessness, and negligence, in the construction, repair and maintenance of the subject property. MOTION PAPERS Plaintiff’s motion papers consist of a notice of motion, an affirmation of counsel and eight annexed exhibits labeled A through H. Exhibit A is plaintiff’s verified bill of particulars. Exhibit B is described as a copy of the Preliminary Conference Order dated on July 12, 2017. Exhibit C is described as an Order from a Compliance Conference dated on December 22, 2017. Exhibit D is denominated as a Final Pre-Note Order dated on May 31, 2018. Exhibit E is described as a Compliance Conference Order dated February 3, 2020. Exhibit F is described as plaintiff’s Supplemental Post-EBT Demands for Discovery & Inspection dated February 5, 2020. Defendants’ opposition papers consist of an affirmation of counsel and two annexed exhibits labeled A and B. Exhibit A is described as the response to plaintiff’s initial discovery demands. Exhibit B is described as the response to plaintiff’s supplemental discovery demands. LAW AND APPLICATION Plaintiff has moved pursuant to CPLR 3126 (3) for an order striking the answer of the defendants based on, among other things the defendants’ failure to respond to discovery demands and Court Orders, and failure to appear for Court-Ordered depositions. Plaintiff’s motion is supported by, among other things, orders from four compliance conferences where the defendants’ were expected to appear in Court to give their depositions. CPLR 3126 addresses the penalties for refusal to comply with an order or to disclose as follows: If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party’s control, 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: (1) an order that issues to which the information is relevant shall be deemed resolved for the purposes of the action in accordance with the claims of the party obtaining the order; or (2) 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 (3) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party. The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court’s discretion (see Chowdhury v. Hudson Val. Limousine Serv., LLC, 162 AD3d 845 [2nd Dept 2018]. Before a court invokes the drastic remedy of striking a pleading, or even of precluding all evidence, there must be a clear showing that the failure to comply with a court order was willful and contumacious (Crupi v. Rashid, 157 AD3d 858, 859 [2nd Dept 2018]). Contrary to the plaintiff’s contention, he failed to establish that he was entitled to sanctions due to the defendants’ alleged failure to properly and fully respond to his discovery requests, because he failed to provide the required affirmation of good faith to resolve the parties’ discovery disputes (see 22 NYCRR 202.7 [c]; Fernandez v. DaimlerChrysler, A.G., 143 AD3d 765, 767-68 [2nd Dept 2016]), citing Pardo v. O’Halleran Family Chiropractic, 131 AD3d 1214, 1215 [2nd Dept 2015]). The Court is mindful that there are instances in which the movant’s failure to provide an affirmation in accordance with 22 NYCRR 202.7 [c] did not require or result in the denial of the motion for sanctions for failure to comply with discovery demands (see Encalada v. Riverside Retail, LLC, 175 AD3d 467 [2nd Dept 2019]). However, in those instances, the movant satisfied the requirements of 22 NYCR 202.7 (c) by the primary affirmation of counsel submitted in support of the motion wherein counsel detailed the efforts made to obtain their adversary’s compliance. In the case at bar, however, the affirmation of plaintiff’s counsel did not detail the efforts plaintiff made to resolve the discovery dispute. Contrary to the requirements of 22 NYCRR 202.7, the affirmation of plaintiff’s counsel did not indicate the time, place and nature of the consultation and the issues discussed nor why no such conferral with counsel for the defendants was held (Bronstein v. Charm City Housing, LLC, 175 AD3d 454 [2nd Dept 2019]). Moreover, there was no clear showing that the defendants willfully and contumaciously failed to comply with plaintiff’s discovery demands (Belle-Fleur v. Desriviere, 178 AD3d 993, 995 [2nd Dept 2019]). Consequently, plaintiff’s motion is denied. CONCLUSION The motion by Grant Nelson for an order pursuant to CPLR 3126 (3), striking the answer of defendants based on the defendants’ alleged failure to respond to discovery demands is denied. The foregoing constitutes the decision and order of this Court. Dated: August 28, 2020
