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135 E 57th Street LLC v. Katzoff

(Supreme Court of the State of New York, New York County 5/26/2012)

135 E 57th Street LLC

We represented: Hon. Charles E. Ramos, J.S.C.

DECISION and ORDER

Upon the reading and filing of Plaintiff's Order to Show Cause dated March 9, 2012, the Affirmation of Donald A. Harwood dated March 9, 2012 (the "Harwood Aff. "), the Affirmation of Simon Reiff dated March 9, 2012 (the "Reiff Aff. "), and Plaintiffs Memorandum of law dated March 9, 2012 in support of Plaintiff's motion to strike the Answers of Defendants GH Day Spa 57th Street, GH Day Spas, Katzoff, and Pinchuk (collectively, the "GH Defendants") and for sanctions and other discovery related remedies, the GH Defendants' Affirmation of Mark Krassner dated March 30, 2012 and Affidavit of Gerald Katzoff sworn to March 27, 2012 in opposition to Plaintiff's motion to strike the Answers of the GH Defendants and in opposition to sanctions and discovery related remedies, and the exhibits annexed thereto;

WHEREAS Plaintiff, having appeared in this action by its attorneys Itkowitz & Harwood, by Donald A. Harwood, Esq., and Defendants GH Day Spa 57th Street, GH Day Spas, Katzoff, and Pinchuk (collectively the "GH Defendants"), having appeared in this action by their attorneys, Cohen & Krassner, by Mark Krassner, Esq.;

WHEREAS Plaintiff moved this Court by Order to Show Cause on May 9, 2011 to strike the Answers of Defendants for failure to provide responses to outstanding discovery demands, and for other discovery related remedies, and during oral argument on June 2, 2011 Defendants were ordered by Hon. Charles E. Ramos, J.S.C., to produce certain ESI discovery and the GH Defendants subsequently failed to do so;

WHEREAS this Court, having ordered on the record during oral argument on April 9, 2012 (the "Transcript", a copy of which is annexed hereto as Exhibit 1., and which is incorporated in full herein) that Plaintiff submit a proposed order granting Plaintiff attorneys' fees and referring this matter to a Special Referee in order to determine reasonable attorneys' fees (see Transcript, page 20, lines 1 1-14); and

WHEREAS Plaintiff, having moved this Court by Order to Show Cause, dated March 9, 2012, for an order pursuant to CPLR § 3126(3), striking the Answers of the GH Defendants, and entering a judgment of default in Plaintiff's favor, for willfully and repeatedly refusing to comply with this Court's multiple Orders compelling responses to Plaintiffs outstanding discovery demands; pursuant to CPLR § 3126( 1 ), deeming all those issues to which Plaintiffs discovery related, resolved against the GH Defendants and in favor of Plaintiff, and granting Plaintiff an adverse inference at trial; pursuant to CPLR § 3126(2), precluding the GH Defendants from presenting any evidence or testimony at trial relating to the discovery sought by Plaintiff; pursuant to CPLR § 3124, compelling the GH Defendants to provide full responses to Plaintiff's discovery demands; and granting attorney's fees and costs to Plaintiff attendant to this and all prior motion practice and necessitated by the GH Defendants' repeated and willful discovery defaults:

The Court finds that Plaintiff is entitled to sanctions in the form of reasonable attorneys' fees, to be determined by a Special Referee, who will determine what additional expenses Plaintiff suffered by reason of pursuing additional discovery subsequent to the GH Defendants' first communication to Plaintiff's attorney on February 11, 2011, that documents responsive to Plaintiff's requests were destroyed in a fire that took place on February 4, 2011.

The Court finds that the other discovery related relief requested by Plaintiff in its motion should be held in abeyance pending the deposition of Defendants.

Accordingly it is:

ORDERED AND ADJUDGED, that Plaintiffs motion to strike the Answers of Defendants GH Day Spa 57th Street, GH Day Spas, Katzoff, an Pinchuk (collectively, the "GH Defendants") and for sanctions and other discovery related remedies in favor of Plaintiff and against Defendants GH Day Spa 57th Street, GH Day Spas, Katzoff, an Pinchuk (collectively, the "GH Defendants",) is granted in part in that reasonable attorneys' fees incurred by Plaintiff as a result of the GH Defendants discovery defaults be awarded to Plaintiff, and the remainder of Plaintiff's motion is to be held in abeyance pending deposition of the Defendants, and it is; ORDERED AND ADJUDGED, that the amount of such reasonable attorneys' fees is referred to a Special Referee to hear and report to the Court.

SO ORDERED: