BBG recently obtained an important decision that highlights the importance of aggressively pursuing discovery and discovery-related remedies with the aim of limiting issues for trial and crippling an opponent’s ability to prove the elements of its case.
The case involves a lease dispute, in which the Plaintiff and former landlord seeks restoration damages from our client for purported failure to restore the leased premises to its pre-existing condition as it existed prior to our client’s tenancy. In an attempt to substantiate her damages claims, plaintiff/landlord produced in discovery two years apart from each other two sets of conflicting and what appeared to be altered invoices, which plaintiff claimed she received from two of plaintiff’s contractors who performed restoration work at the premises. When pressed at deposition about the glaring inconsistencies, plaintiff could not explain why the invoices had been altered two years later and by whom. To answer these questions, BBG rigorously pursued discovery by serving Plaintiff with post deposition demands and Plaintiff’s contractors with subpoenas. After Plaintiff failed to respond to the post EBT demands and the contractors failed to comply with the subpoenas, BBG moved to hold Plaintiff’s contractors in contempt, that Plaintiff’s contractors purge their contempt by serving documentary responses to the subpoenas and appear for deposition within 30 days and to preclude Plaintiff from offering her contractors as witnesses at trial and/or rely on documents received from the third party contractors.
By decision and order the court (Giacomo, J.) granted the motion to the extent of holding Plaintiff’s contractors in contempt, which they must purge within 20 days by producing documents and appearing for deposition; otherwise, plaintiff is precluded from offering them as witnesses at trial and/or offering documents from the contractors not produced in discovery. The court also precluded Plaintiff from offering into evidence at trial any documents not produced in response to our post deposition demands that are not produced by the time note of issue is filed. The ramifications of this decision are that if the non-parties contractors do not comply (and there is a strong likelihood that they will not), this case is effectively over because without the ability to call Plaintiff’s contractor’s as witnesses at trial, Plaintiff will have no method to authenticate the invoices and documents received from her contractors and which are essential to prove her case.
The case is being handled by Jeffrey L. Goldman and Israel Katz of our Litigation Department. For a copy of the decision, click here: Decsion and Order – 9.17.24.
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If you have any questions regarding this decision or how it impacts your situation, please reach out to your BBG attorney of record.