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Kaplan v. Gioia Properties

Supreme Court, New York

September 13, 2013

LISA KAPLAN and JUSTIN SPATES, Plaintiffs,
v.
GIOIA PROPERTIES, Defendant INDEX No. 150445/2012

Unpublished Opinion

Present: Hon. Louis B. York Justice, Supreme Court

DECISION/ORDER

Hon. Louis B. York Justice, Supreme Court

This motion to strike defendant's answer is denied for two reasons. One, movant did not comply with the preliminary conference order, which, in three sections, requires the parties to contact the court and schedule a telephone conference if a discovery dispute arises, not to resort directly to motion practice. The Court also notes that plaintiff brought this motion over two months after the problem arose. The Court requires timely applications or a showing of good cause for the delay.

Two, under NYCRR 202.7, an affirmation of good faith must accompany all discovery motions. Moreover, subsection (c) provides that this affirmation must "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." In the absence of a good faith affirmation, the court must deny the motion. See Fulton v. Allstate Ins. Co., 14 A.D.3d 380, 382, 788 N.Y.S.2d 349, 351 (1st Dept. 2005). Denial of the motion is also appropriate where the motion is insufficiently detailed, does not show that the movant tried to obtain ordered discovery prior to initiating the motion or is otherwise inadequate. See, e.g, , Chervin v. Mercura, 28 A.D.3d 600, 602, 813 N.Y.S.2d 746, 748 (2nd Dept. 2006). Here, a single letter to defendant in March does not constitute a good faith effort to resolve the discovery problems. See Amherst Synagogue v. Schuele Paint Co., Inc., 30 A.D.3d 1055, 1056-57, 816 N.Y.S.2d 782, 783 (4th Dept. 2006).

Moreover, it appears that the parties have ignored the July 11, 2013 Note of Issue deadline. The Court schedules the parties for a status conference at 2:00 pm on Wednesday, October 9, 2013 at 71 Thomas St. Room 205, and strongly advises the parties to be ready to file the Note of Issue at that time.

Therefore, it is

ORDERED that the motion is denied; and it is further

ORDERED that the parties shall appear for a status conference at 2:00 pm on Wednesday, October 9, 2013 at 71 Thomas St. Room 205.


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