Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Upon the foregoing cited papers, the Decision/Order on Respondents' Notice of Motion seeking relief pursuant to CPLR Section 3126 (Motion Seq. No.5) for Petitioner's failure to comply with the prior Decision/Orders granting discovery is granted as follows:

The dispute in these holdovers concerns the alleged use or creation of residential units beyond that permitted by the Certificate of Occupancy. The alleged creation of six residential units in this two-family house would bring the subject property into de facto Rent Stabilization.

The holdover proceedings are predicated upon a 90-day termination notice. Petitioner had commenced four (4) summary proceedings regarding the subject property. The other three (3) summary proceedings have the following index numbers: LT-305512-22/QU; LT-307820-22/QU; and LT-307827-22/QU.

Pursuant to the 2-attorney Stipulation of February 28, 2023, the cases were consolidated under the lower index number, to wit: LT-305512-22/QU. NYSCEF Doc. No. 27.

The October 16, 2023 Decision/Order of Judge Bryan granted Petitioner's request to discontinue one of the cases LT-307820-22/QU. The Decision approved the proposed consolidation in the Stipulation of February 28, 2023. On January 11, 2024, the consolidation was modified to the extent that LT-305512-22/QU was transferred to the trial part and assigned to Part O. The two consolidated cases that are now before the court are the instant case and LT-307827-22/QU.

The Decision/Order of November 2, 2023 had granted Respondent's discovery request. [*2]The demand included a document demand and interrogatories, which were deemed served.

Respondent moved by notice of motion for relief pursuant to CPLR § 3126(2), arguing non-compliance with the discovery demands. Respondent also moved for an Order to Correct under the Civil Court Act §110(c), the Housing Maintenance Code § 27-2005, and the Multiple Dwelling Law Sections 33, 75 and 176. Petitioner opposed the motion and filed a cross-motion seeking to dismiss Respondent's request for an "order pursuant to Section 110(c) of the Housing Maintenance Code." [sic]

The Decision/Order of May 29, 2024, granted Petitioner the opportunity to provide complete discovery consistent with the November 2, 2023 Decision/Order. Petitioner was to provide all discovery and interrogatory responses on or before June 30, 2024. The matter was adjourned for a status update to be provided on the compliance with the Orders of the Court.

Respondent argues that the imposition of §3126 sanctions is proper as Petitioner has shown a willful failure to comply with the discovery demands served on November 2, 2023. The objective of §3126 is to prevent a litigant from benefitting from non-disclosure of essential facts and information directly relevant their ability to maintain this proceeding. Respondent states that Petitioner's non-disclosure has been willful and without excuse and would deprive Respondent of information, key witnesses, and evidence relevant to Respondent's affirmative defenses. In this regard, Respondent asks for a finding in favor of Respondent as to the tenancy of "Jose Barbecho in Unit Basement Rear during the relevant period." In the alternative, Respondent seeks an order striking Petitioner's pleading as permitted by §3126(3). Respondent further seeks an award of attorneys' fees pursuant to §3126.

In opposition, Petitioner argues that it has complied with all the discovery demands and that it has done so in good faith and to the best of its ability. Petitioner argues that it just wants to go to the trial part, prove its case and evict the Respondent. Petitioner argues that Mr. Jose Barbecho was never a tenant and that "He is nothing more than a creature of the imagination of the Respondents' lawyer." (Affidavit of Fang Lin ¶ 8.)

Petitioner denies that there are people hired to do maintenance work at the house and states that the work done at the house was done by Petitioner, and friends or relatives. Petitioner states that it does not know where the complete insurance policy is located, and that he provided a "Declaration page." Petitioner denies having any information about people who have resided in the house since 2009 to the present. Petitioner denies having payment ledgers or documents that cash was deposited. Petitioner states that it gave whatever it "had in my Discover Responses to the LRAP payment" received. Petitioner argues that it does not have floor plans, photos and charts of the subject property, and that if documents were not produced it is because they do not exist. Petitioner's Affidavit was translated by a Mandarin interpreter.

The Respondent's Reply elaborates on how Mr. Jose Barbecho had resided in the Unit Basement Rear for years and on his connection to Petitioner. Respondent argues that the documentary proof presented to Petitioner and Petitioner's failed response to the documentary evidence shows willful non-compliance with discovery demands. More specifically, Respondent states that Petitioner did not supply a Declaration Page, "but a cover letter of his policy which contains no details as to the policy itself." Respondent argues that Petitioner's continued failure to produce documents and information under Petitioner's possession and control demonstrates willful non-compliance with discovery demands sans any reasonable excuse.

The instant motion to enforce discovery demands which were So Ordered by the Decision/Order of November 2, 2023 is proper pursuant to CPLR §3126. The Decision/Order of May 29, 2024, granted Petitioner the opportunity to provide complete discovery consistent with the November 2, 2023 Decision/Order.

CPLR Article 31 regarding discovery provides ample guidance to litigants, and in particular §3126 addresses situations for refusal to comply with a discover order. Here, there is no dispute that a discovery order was issued, that there was time granted to comply with the discovery demand, and that discovery provided has been incomplete or simply said not to exist.

Given the dispute and the careful examination of the details provided, the Court must determine if there was "willful" non-compliance and upon such a finding, CPLR §3126 provides the outcome that must be followed.

§ 3126. Penalties for refusal to comply with order or to disclose.

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 willfully 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 the issues to which the information is relevant shall be deemed resolved for 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.

Gelin v New York City Tr. Auth., 189 AD3d 789 [2d Dept 2020] provides guidance on the issues raised in the motion now before the court. "Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party 'refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed' " (Aha Sales, Inc. v. Creative Bath Prods., Inc., 110 AD3d 1019, 1019 [2013]). The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the court (see Smookler v. Dicerbo, 166 AD3d 838, 839 [2018]). Nevertheless, public policy strongly favors the resolution of cases on their merits (see Warner v. Orange County Regional Med. Ctr., 126 AD3d 887, 887 [2015]). Therefore, the drastic remedies of striking a pleading or precluding evidence are not appropriate absent a clear showing that the failure to comply with discovery demands was willful and contumacious (see CPLR 3126 [3]; Gafarova v. Yale Realty, LLC, 174 AD3d 862, 863 [2019]; Strong v. Delemos, 172 AD3d 940, 942 [2019]).

The determination of whether there has been a pattern of willfulness and contumacious [*4]conduct that necessitates §3126, a drastic order of preclusion or striking of the pleading, must be examined in the context of what efforts have been made to comply with the discovery demands. "The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse" (Commisso v. Orshan, 85 AD3d 845, 845, 925 N.Y.S.2d 612 [2011] Reyes v. U.S. Sec. Assoc. Aviation Servs., Inc., 230 AD3d 708, 709 [2d Dept 2024]

Here, Petitioner alleges that it does not have documents, or knowledge or that it cannot find the documents. Respondent refutes in detail how the lack of knowledge and denial of such document are in clear contradiction to what has been asked of Petitioner. For instance, Petitioner is asked to provide information as to hired contractors. Petitioner denies having such document or knowledge. In the context of documentary evidence presented, the filed permit with the New York City Department of Buildings, Petitioner's obfuscation and blanket denial would fall in the category of "willfulness and contumacious" conduct. There is no reasonable explanation or excuse offered by the Petitioner to explain the filed permit. Respondent also addresses the request to inspect "unexpurgated rent records" explaining that the "handwritten records provided to the Court are clearly extracted from a more complete physical document ." Petitioner's response that it did not have records and it did not deposit rental payments into a bank account to pay for the taxes, gas, electric and water bill does not seem plausible, or provide a reasonable explanation, and such blanket denials are what §3126 was designed to address, with the caveat that Petitioner will be given one last chance to comply.

The discovery dispute here is not a single incident of noncompliance, and in the spirit of the case law from the Appellate Division of the Second Department, a conditional order of preclusion is in order. Korsinsky & Klein, LLP v. FHS Consultants, LLC, 214 AD3d 961 [2d Dept 2023] Supra, Reyes v. U.S. Sec. Assoc. Aviation Servs., Inc., 230 AD3d 708[2d Dept 2024].

Accordingly, Respondent's Motion Seq. No. 5 is granted to the extent that upon Petitioner's failure to comply with the discovery demands, and this conditional order of preclusion by no later than December 16, 2024, Petitioner is prohibited from opposing designated claims or defenses and from introducing any evidence of the condition sought to be determined, or from using certain witnesses as consistent with §3126(2). In sum, Petitioner would be precluded from introducing at the trial any documents or evidence that it failed to produce pursuant to the discovery order. Upon the ultimate imposition of §3126(2), Respondent may seek reasonable attorneys' fees which is governed by §3126 at the conclusion of the trial.

This matter will be restored to the calendar on December 16, 2024 at 9:30 am to be transferred to Part X to be assigned to a trial part and subject to conditional preclusion.

This Decision/Order will be filed to NYSCEF and to the consolidated case LT-307827-22/QU.

This constitutes the Decision/Order of the Court.