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Luo v. Yang

Supreme Court of New York, Second Department

May 3, 2017

Feng Lucy Luo, respondent,
v.
Tom T. Yang, appellant. Index No. 202939/12

          Phyllis C. Solomon (Podvey, Meanor, Catenacci, Hildner, Cocoziello & Chattman, P.C., New York, NY [Wendy B. Shepps], of counsel), for appellant.

          Fass & Greenberg, LLP, Garden City, NY (Florence M. Fass of counsel), for respondent.

          MARK C. DILLON, J.P. SHERI S. ROMAN JEFFREY A. COHEN ROBERT J. MILLER, JJ.

          DECISION & ORDER

         Appeal by the defendant from an order of the Supreme Court, Nassau County (Jeffrey A. Goodstein, J.), dated June 4, 2015. The order (1) denied the defendant's motions (a) to vacate a so-ordered stipulation dated December 9, 2013, which conditionally precluded him from offering any evidence at trial, (b) to direct nonparty Sinopec USA, also known as China Petroleum and Chemical Corporation, to comply with a subpoena duces tecum served upon it in January 2015, and (c) for the issuance of Letters Rogatory to the appropriate authority in Princeton, New Jersey, to take the deposition upon written questions of nonparty Wenyue Hau, and (2) granted the plaintiff's motion for a protective order enjoining the defendant from conducting any further discovery of her or any third party in this action, and from enforcing any discovery notice or subpoena previously served by the defendant against her or any third party in this action.

         ORDERED that the order is affirmed, with costs.

         Following the defendant husband's failure to respond to the plaintiff wife's discovery demands in this action for a divorce and ancillary relief, the parties entered into a so-ordered stipulation dated December 9, 2013, directing the defendant to comply with the plaintiff's outstanding discovery demands, and to cooperate with the court-appointed neutral forensic evaluator and pay his share of the evaluator's fees, by a certain date. The agreed-upon sanction for the defendant's failure to comply with the so-ordered stipulation was his preclusion from offering any evidence at trial in this action. The defendant, who conceded that he failed to comply with the so-ordered stipulation, moved to vacate it. He also moved in two additional, separate motions to direct nonparty Sinopec USA, also known as China Petroleum and Chemical Corporation, to comply with a subpoena duces tecum served upon it in January 2015, and for the issuance of Letters Rogatory to the appropriate authority in Princeton, New Jersey, to take the deposition upon written questions of nonparty Wenyue Hau. The plaintiff opposed the defendant's motions and moved by order to show cause to enjoin the defendant from conducting any further discovery of her or any third party in this action, and from enforcing any discovery notice or subpoena previously served by the defendant against her or any third party in this action. The Supreme Court denied the defendant's motions, granted the plaintiff's motion, and, inter alia, issued a protective order pursuant to CPLR 3103(a) preventing the defendant from seeking to obtain any information about the plaintiff, whether financial or otherwise, and quashed any subpoenas issued prior to the order appealed from on behalf of the defendant seeking any financial or other information of the plaintiff. The defendant appeals.

         "A conditional order of preclusion requires a party to provide certain discovery by a date certain, or face the sanctions specified in the order" (Hughes v Brooklyn Skating, LLC, 120 A.D.3d 758, 758-759; see Gibbs v St. Barnabas Hosp., 16 N.Y.3d 74, 82-83; SRN Realty, LLC v Scarano Architect, PLLC, 116 A.D.3d 693, 693-694). Here, the so-ordered stipulation entered into by the parties in this action functioned as a conditional order of preclusion, which became absolute upon the defendant's failure to comply with it (see Wilson v Galicia Contr. & Restoration Corp., 8 A.D.3d 560; Goldsmith Motors Corp. v Chemical Bank, 300 A.D.2d 440, 440-441; Siltan v City of New York, 300 A.D.2d 298), unless the defendant demonstrated a reasonable excuse for failure to comply with its terms and the existence of a potentially meritorious cause of action or defense (see Gibbs v St. Barnabas Hosp., 16 N.Y.3d at 80; SRN Realty, LLC v Scarano Architect, PLLC, 116 A.D.3d at 694; see also G.D. Van Wagenen Fin. Servs., Inc. v Sichel, 43 A.D.3d 1104, 1105; Kumar v Yonkers Contr. Co., Inc., 14 A.D.3d 493, 494; Baturov v Marchewka, 10 A.D.3d 345). The defendant, who offered bare allegations of neglect by his prior counsel, failed to demonstrate a reasonable excuse for his failure to comply with the so-ordered stipulation (see Vitolo v Suarez, 130 A.D.3d 610; Hughes v Brooklyn Staking, LLC, 120 A.D.3d 758; Carillon Nursing & Rehabilitation Ctr., LLP v Fox, 118 A.D.3d 933). Inasmuch as the defendant failed to demonstrate a reasonable excuse for his failure to comply with the so-ordered stipulation, we need not consider whether he offered a potentially meritorious cause of action or defense to the action (see U.S. Bank N.A. v Ahmed, 137 A.D.3d 1106).

         Accordingly, the Supreme Court properly denied the defendant's motions and, under the circumstances herein, properly granted the plaintiff's motion and ...


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