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H. Kaplan Paint Supply Corp. v Sherry Hill Painting, L.L.C. 2010 NY Slip Op 32767(U) September 29, 2010 Supreme Court, New York County Docket Number: 110421/08 Judge: Louis B. York Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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W YORK SUPREME COURT OF THE STATE OF Q t Fk PRESENT: b
Index Number : 110421/2008 ' .

INDEX NO.
MOTION DATE

H. KAPLAN PAINT SUPPLY
VS.

S HERRY HILL PA1NTING
SEQUENCE NUMBER : 001 VACATE NOTE OF ISSUUREADINESS

Notlce of Motion/ Order t o Show Cause
Answering Affldavita - Exhlbfts

- Affldavlta

Replylng Affidavltta

Cross-Motion:

0 Yes

&I

No

Upon the foregolng papers, It io ordered that thio motion

Dated:

Check if appropriate:

0 DO NOT POST

0 SUBMIT ORDER/JUDG.

+

QULy.

- NEW YORK

COUNTY

#J.s*c.

PART

MOTION SEa.

NO.

1 this

MOTION CAL. NO.

motion to/for
PAPFRS NUMBERE4

- Exhibits ...

- 0 REFERENCE

0 SETTLE ORDER /JUDG.

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Plaintiff, Index No. : 110421/OS

SHERRY HILL PANTING, L.L.C.,

YORK, J.:
Sherry Hill Painting, L.L.C., defendant, moves, l(e) of the

New York Code, Rules and Regulations, to vacate the note of issue which H. Kaplan Paint Supply Corp. d/b/a Merit-Kaplan Paint, plaintiff, filed on May 21,2010, and to strike this action from the trial calendar. Plaintiff contends that the note of issue should not be vacated, because defendant failed to actively pursue discovery before the hote of issue was filed. Plaintiff and defendant appeared for a preliminary conference on September 23,2009. At the conference, both parties agreed to conduct plaintiffs deposition on December 14,2009 and defendant's deposition on December 15,2009. The deposition of plaintiffs witness, Jeffrey Kaplan (Mr. Kaplan), commenced on December 14,2009, however, the deposition was adjourned on consent and was to be completed on an unscheduled date, because Mr. Kaplan had to leave before the deposition was finished. Counsel for defendant stated at the deposition, that because the deposition needkd to be finished, the parties would also adjourn the defendant's deposition to a later date.

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Despite e-mail correspondence in January of 20 10 between counsel for the parties, a date was never agreed upon for the continuation of Mr. Kaplan's deposition. In an email sent to Dennis Pak, Esq., counsel for defendant, on April 15, 2010, Charles von Simson, Esq., counsel for plaintiff, stated that he had not received responses to his document demands and that the

a discovery end date w s fast approaching. On April 23,2010, Mr. Pak replied to this e-mail and
stated that the documents were being gathered and a response would be provided ``assoon as possible." (Affirm. in Opposition, ex. C). Mr, Pak also requested dates for the continued deposition of Mr. Kaplan. The deposition was never rescheduled, and the note of issue was filed on May 21,2010. Defendant contends that along with the completion of Mr. Kaplan's deposition, documents which were requested in discovery demands and at Mr. Kaplan's deposition were not provided. (Plevritis Afirm.,

7 8).

The documents requested at Mr. Kaplan's deposition include

delivery invoices, copies of letters from plaintiff to defendant and blanket letters to all of plaintiffs customers that indicate the increased rates of plaintiffs products, price lists for 2002 through 2008, back order slips, e-mail correspondence between plaintiff and defendant, copies of cash receipts for payments received by plaintiff from defendant, a copy of plaintiffs account ledger, copies of billing statements prior to March 3 1,2007, and copies of all monthly statements that were sent by plaintiff to defendant during the course of the relationship. Plaintiff contends that, pursuant to the preliminary conference order, defendant w s to a make an additional documentary request via letter, however, defendant failed to send a letter or make any additional document requests prior to Mr. Kaplan's deposition. Plaintiff maintains
,

that, although defense counsel indicated that he would request additional documents based upon 2

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the testimony of Mr. Kaplan, no formal requests were made and plaintiff did not receive a copy

of the transcript of the deposition until this motion was filed. Plaintiff further maintains that
despite several e-mails and telephone calls regarding the rescheduling of the deposition and inquiries regarding its own document requests, no documents were ever produced. Plaintiff states that it is willing to proceed to trial without any further discovery. Here, although plaintiff filed the note of issue on May 2 1,20 10 and stated that discovery was complete, this was inaccurate. Mr. Kaplan's deposition was never completed, defendant's deposition never took place, and documents remain to be exchanged by both parties. Neither plaintiff nor defendant address whether they complied with Part 2's deposition adjoumment policy discussed in the preliminary conference order, which provides that parties who seek to

adjourn deposition dates must receive prior court approval and that violating this requirement
would result in sanctions or the waiver of further depositions, This leaves the court to infer that they failed to request that the court approve adjourned deposition dates. Both parties also fail to address why they did not comply with paragraph seven of the preliminary conference order which states that "as disclosure problems arise and before the end date of discovery, the affected party must contact the part and arrange a telephone conference . . . [flailure to comply by discovery deadlines waives all pending and future discovery absent good cause." (Plevritis Affirm., ex. D). In addition to plaintiff and defendant's failure to comply with Part 2's discovery rules, the request for judicial intervention was filed on August 12,2009, and over one year has passed, exceeding the court's standards and goals. Therefore, because of the parties' failures to abide by the court's discovery directives, the court will not vacate the note of issue. Accordingly, it is
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ORDERED that defendant Sherry Hill Painting, L.L.C.'s motion to vacate the note of
issue is denied. Dated: September B0 10 2

ENTER:

n
J.S.C.

&L M

LOUIS B. YORK
p J.$.C!
a ' * * h

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