Singh v. Hariohm Realty LLC

2021 NY Slip Op 33121(U)

TARLOCHAN SINGH, v. HARIOHM REALTY LLC and DISTINCTIVE MAINTENANCE COMPANY, INC., and a Third-Party Action.

Index No. 713451 2020

Supreme Court, Queens County

November 4, 2021

Unpublished Opinion

Motion Date May 27, 2021

HON LANCE EVANS, JSC

The following numbered papers were read on this motion by plaintiff seeking the striking of the answers of Distinctive Maintenance Company, Inc. (Distinctive), and third-party defendants, JIT Construction Corp. (JIT), Catlin Specialty Insurance Company (Catlin), Starstone U.S. Services, Inc. (Starstone), and Kingstone Insurance Company (Kingstone) pursuant to CPLR 3126; on this cross motion by third-party defendant, Starstone, seeking dismissal of the third-party complaint and all cross claims against it, pursuant to CPLR 3216; and on this cross motion by third-party defendant Catlin, seeking, among other things, a declaration that defendant, Hariohm Realty, LLC (Hariohm), is not entitled to a defense or indemnification from Catlin in the underlying action, pursuant to CPLR 3212 and 3001.

Papers Numbered

Notice of Motion - Affirmation - Exhibit ........................................ E8-E11

Notices of Cross Motion - Affirmations - Exhibits .......................... E12-E31

Answering Memorandum of Law and Affirmations - Exhibits E32-E46, E49-E56

Reply Memorandum of Law E47

Upon the foregoing papers, it is ordered that the instant motion, and two cross motions, are determined as follows:

This is the sixth (6) motion in this 2016 action.

The underlying action seeks damages for personal injuries allegedly sustained by plaintiff, Tarlochan Singh, in a work-related accident on October 25, 2015, at 138-68 94^th Avenue, Jamaica, New York. Hariohm, the owner of the subject property, hired JIT to do work thereat. Plaintiff was employed by JIT, when he fell off a ladder and was injured. Plaintiff commenced an action against Hariohm and Distinctive for violations of Labor Law §§ 200, 240, and 241, and Rule 23 of the NY Industrial Code (§§ 22, 26, 30, and 34). Hariohm brought a third-party action against Distinctive, JIT, Catlin, Starstone, and Kingstone, claiming entitlement to a defense and/or indemnification pursuant to either the terms of a commercial general liability policy, an excess liability policy, a lease agreement, or lack of negligence on Hariohm's part.

There was a Preliminary Conference Order in this case on 5/13/16, as well as a Compliance Conference Order on 10/3/17. On 5/31/17, a Note of Issue and Jury Demand were filed. On November 16, 2017, pursuant to a stipulation entered into in open court, depositions and times for summary judgment motions were set. Plaintiff's and Hariohm's depositions were completed, but the remaining third-party defendants' depositions were not held for reasons unknown to the Court. The Court does not view Preliminary Conference Orders or Compliance Conference Orders as "mere formalities that may be ignored" by the parties. Nor may parties fail to honor their own discovery stipulations.

On May 17^th and May 19^th, 2019, Starstone served 90-day notices on Hariohm and plaintiff, respectively, seeking a resumption of their actions. No response was received from either party.

Discovery and 90-Day Notices

Plaintiff moves to either strike the answers of Distinctive, and of the third-party defendants, or, "in the alternative," to order their appearance for deposition, for failing to comply with discovery. "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" (Hasan v 18-24 Luquer St. Realty, LLC, 144 A.D.3d 631, 632 [2d Dept 2016], quoting Richards v RP Stellar Riverton, LLC, 136 A.D.3d 1011, 1011 [2d Dept 2016]; see U.S. Bank N.A. v Sirota, 189 A.D.3d 927 [2d Dept 2020]; Chowdhury v Hudson Val. Limousine Serv., LLC, 162 A.D.3d 845 [2d Dept 2018]). Striking a pleading, pursuant to CPLR 3126, for failure to comply with disclosure is a drastic remedy, and is only appropriate where there is a clear showing that the failure to comply was willful, contumacious or in bad faith (see Nash v MRC Recovery, Inc., 172 A.D.3d 1213 [2d Dept 2019]; JNG Constr., Ltd. v Roussopoulos, 170 A.D.3d 1136 [2d Dept 2019]). It may be inferred that a party's conduct is willful and contumacious when said party repeatedly fails to comply with court orders compelling disclosure without providing an adequate, reasonable excuse for said party's noncompliance, over an extended period of time (see Empire Enters. I.J.J.A., Inc. v Daimler Buses of N. Am., Inc., 172 A.D.3d 819 [2d Dept 2019];, Candela v Kantor, 154 A.D.3d 733 [2d Dept 2017]; Desiderio v GEICO Gen. Ins. Co., 153 A.D.3d 1322 [2d Dept 2017]).

"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" (Kihl v Pfeffer, 94 N.Y.2d 118, 123 [1999]; see Deutsche Bank Natl. Trust Co. v Baquero, 192 A.D.3d 660 [2d Dept 2021]). "If a party refuses to obey an order for disclosure ... the court may make such orders with regard to the failure or refusal as are just" (Smith v County of Nassau, 138 A.D.3d 726, 728 [2d Dept 2016]).

In addition, Section 202.20-f (a) of the Uniform Rules requires the parties, to the maximum extent possible, to resolve discovery disputes through informal procedures, such as conferences, as opposed to motion practice. And once resolved by agreement, that agreement ought to be honored by the subscribing parties, to avoid the result in this case.

It is ORDERED that the non-complying third-party defendants shall appear for depositions within twenty-one (21) days of the filing of this Decision and Order on NYSEF (E-File), and, if not, their answers shall be stricken for non-compliance with the two Court discovery orders as well as their own stipulation in this matter. There shall be no extensions or adjournments of this time period in this 2016 matter, as they have had more than sufficient time to comply, and have failed to do so. Should any discovery non-compliance occur, the party seeking the depositions shall E-File an affirmation attesting to their non-compliance, along with an order striking the non-compliant parties' pleadings for the signature of the Court. This Order is final as against the non-disclosing parties.

Third-party defendant, Starstone, cross-moves for "dismissal of plaintiff's and Hariohm's claims as against Starstone ... based on their respective failure to resume prosecution of their claims despite being served with a 90-demand (sic) to resume prosecution." A Note of Issue was filed in this matter, and Plaintiff and Hariohm's depositions were completed. It has been held that CPLR Rule 3216 is "extremely forgiving of litigation delay." (Baczkowski v. D.A. Collins Construction Co., Inc., 89 N.Y.2d 499, 503 [1997].) Accordingly, it is ORDERED that Starstone's cross-motion is denied in accordance with the foregoing order. Any other requested relief pursuant to CPLR 3216 is likewise denied as without legal efficacy.

As to the remaining cross-motions seeking discovery, or dismissal based on outstanding discovery, it is hereby ORDERED that all remaining discovery in this matter shall be completed in this matter within sixty (60) days of the filing of this Decision and Order on NYSEF (E-File), and, if not, the pleading of the non-compliant party or parties shall be stricken for non-compliance with these discovery directives as well as their own stipulation in this matter. There shall be no extensions or adjournments of this time period in this 2016 matter, as they have had more than sufficient time to comply, and have failed to do so. Should any discovery non-compliance occur, the party seeking the disclosure shall E-File an affirmation attesting to their non-compliance, along with an order striking the non-compliant parties' pleadings for the signature of the Court. This Order is final as against any non-disclosing party or parties. The parties could have cooperated and set their own discovery schedule, but, having failed to do so, and having failed to honor their stipulation, they have abdicated their discovery obligations to this Court, which shall now impose a stringent remedy to rectify the situation, and hopefully prevent its reoccurrence.

Declaratory Judgment

"The general purpose of the declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations" (James v Alderton Dock Yards, 256 NY 298, 305 [1931]; see 159 MP Corp. v Redbridge Bedford LLC, 160 A.D.3d 176 [2d Dept 2018]). An action for declaratory judgment may be utilized only for a justiciable controversy, i.e., where the court has jurisdiction over the subject matter of the action, and the dispute is genuine, rather than academic, between parties with a stake in the outcome (see Matter of Hargraves v City of Rye Zoning Bd. of Appeals, 162 A.D.3d 1072 [2d Dept 2018]; DiGiorgio v 1109-1113 Manhattan Ave. Partners, LLC, 102 A.D.3d 725 [2d Dept 2013]; Chanos v MADAC, LLC, 74 A.D.3d 1007 [2d Dept 2010]). A declaratory judgment action, brought by a disclaiming insurer, would be the appropriate vehicle to test the insurer's right to disclaim coverage or deny liability (see McDonald v Shore, 100 A.D.3d 602, 603 [2d Dept 2012]; see Iacobellis v A-1 Tool Rental, Inc., 65 A.D.3d 1015 [2d Dept 2009]; Monoghan v Meade, 91 A.D.2d 1014 [2d Dept 1983]), and, here, "the allegations of the (motion) were sufficient to invoke the court's power to render a declaration resolving a justiciable controversy between the parties...