Behar v. Wiblishauser

219 A.D.3d 793

195 N.Y.S.3d 249

Edward J. BEHAR, et al., appellants,

v.Michael WIBLISHAUSER, et al., respondents.

2021-04561

Index No. 32456/09

Supreme Court, Appellate Division, Second Department, New York.

Submitted—March 31, 2023

August 23, 2023

Donald Leo & Associates, P.C. (John F. Clennan, Ronkonkoma, NY, of counsel), for appellants.

Germano & Cahill, P.C., Holbrook, NY (Alyssa Solarsh–Sinatra and G. William Germano, Jr., of counsel), for respondents.

ANGELA G. IANNACCI, J.P., LINDA CHRISTOPHER, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action pursuant to RPAPL article 15 to compel the determination of claims to real property and for injunctive relief, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Andrew A. Crecca, J.), dated June 21, 2021. The order, insofar as appealed from, denied that renewed branch of the plaintiffs’ motion which was to compel the defendants to provide certain discovery.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiffs and the defendants own adjoining residential properties in Dix Hills. In 2009, the plaintiffs commenced this action pursuant to RPAPL article 15 to compel the determination of claims to real property, alleging that the defendants’ driveway encroached three feet onto their property, and for an injunction requiring the defendants to remove the encroachment. In a decision and order dated October 17, 2012, this Court reversed a judgment in favor of the plaintiffs and against the defendants, upon concluding that the plaintiffs had erroneously been awarded summary judgment (see Behar v. Wiblishauser, 99 A.D.3d 838, 953 N.Y.S.2d 51 ).

In or about December 2019, the plaintiffs moved pursuant to CPLR 3124 and 3126 to compel the defendants to provide certain discovery. By order dated May 18, 2020, the Supreme Court denied the motion with leave to renew upon the submission of proper papers, explaining that the motion failed to include an affirmation in good faith, as required by 22 NYCRR 202.7. The plaintiffs thereafter, inter alia, renewed their prior motion. The renewed branch of the motion was again denied, by order dated June 21, 2021, for failure to comply with 22 NYCRR 202.7. The plaintiffs appeal from that portion of the June 21, 2021 order.

Pursuant to 22 NYCRR 202.7, all motions relating to disclosure or to a bill of particulars 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" ( 22 NYCRR 202.7 [a]; see Muchnik v. Mendez Trucking, Inc., 212 A.D.3d 640, 641, 181 N.Y.S.3d 610 ). "The affirmation of the good faith effort to resolve the issues raised by the motion 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" ( 22 NYCRR 202.7 [c]; see Muchnik v. Mendez Trucking, Inc., 212 A.D.3d at 641, 181 N.Y.S.3d 610 ). "Failure to provide an affirmation of good faith which substantively complies with 22 NYCRR 202.7(c) warrants denial of the motion" ( Winter v. ESRT Empire State Bldg., LLC, 201 A.D.3d 842, 844, 161 N.Y.S.3d 314 ).

Here, in connection with the renewed branch of their motion which was to compel the defendants to provide certain discovery, the only information the plaintiffs provided as to their efforts at resolving the alleged discovery...