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`SUPREME COURT-STATE OF NEW YORK
`SHORT FORM ORDER
`Present:
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`HON. TIMOTHY S. DRISCOLL
`Justice Supreme Court
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`SANJANA ABRAHAM,
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`TRIAL/IAS PART: 11
`NASSAU COUNTY
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`Plaintiff,
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`Index No: 608360-15
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`Motion Seq. Nos. 13 and 14
`Submission Date: 8/24/18
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`-against-
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`WERNER J. WILHELM WICKER,
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`Defendant.
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`WERNER J. WILHELM WICKER,
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`Third Party Plaintiff,
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`-against
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`SHASHI ABRAHM,
`REBECA INC a/k/a REBECA INC,
`a/k/a REBECA, INC., DR. PRASAD CHALISANI,
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`Third Party Defendants.
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`The following papers having been read on these motions:
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`Notice of Motion, Affirmation in Support,
`Attorney's Affirmation of Legal Fees and Expenses and Exhibits (cid:9)
`Notice of Cross Motion, Affirmation in Opposition/Support,
`Affidavit of W. Wicker and Exhibits (cid:9)
`Affidavit of P. Chalasani (cid:9)
`Affirmation in Opposition/Reply (cid:9)
`Reply Affirmation in Further Support (cid:9)
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`This matter is before the Court for decision on 1) the motion filed by Plaintiff Sanjana
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`Abraham ("Abraham" or "Plaintiff') on July 31, 2018, and 2) the cross motion filed by
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`Defendant Werner J. Wilhelm Wicker ("Wicker" or "Defendant") on August 21, 2018, both of
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`which were submitted on August 24, 2018. For the reasons set forth below, the Court 1) denies
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`Plaintiff's motion to impose sanctions but directs that Defendant provide sworn responses to
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`Plaintiff's discovery demands by October 12, 2018; and 2) with respect to Defendant's motion:
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`a) denies Defendant's motion to amend his answer; b) denies Defendant's motion for summary
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`judgment; c) directs that the deposition of the Defendant shall be conducted via videoconference
`on or before November 2, 2018, or live on or before December 10, 2018, at the sole discretion
`of Plaintiff; and d) denies Defendant's application for sanctions. The conference scheduled on
`December 4, 2018 is hereby adjourned to December 14, 2018 at 9:30 a.m.
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`Relief Sought
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`BACKGROUND
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`Plaintiff moves for an Order imposing sanctions against Defendant, pursuant to CPLR
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`§ 3126 and or 22 NYCRR Part 130, due to his willful and contumacious misconduct and
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`frivolous conduct.
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`Defendant cross moves for an Order 1) denying Plaintiff's motion; 2) permitting
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`Defendant to amend his Amended Verified Answer and Counterclaims to assert a Statute of
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`Frauds Defense pursuant to General Obligations Law ("GOL") § 5-703 in the form annexed to
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`Defendant's cross motion; 3) awarding summary judgment to Defendant dismissing Plaintiffs
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`sole cause of action based on the Statute of Frauds or, in the alternative, granting Defendant
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`leave to move for summary judgment based upon its Second Amended Answer and
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`Counterclaim; or 4) in the alternative, granting Defendant the opportunity to renew and modify
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`the Court's order and transcript dated June 11,2018 based on changed circumstances,
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`specifically permitting Defendant to be deposed either by video conference before October 31,
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`2018 or in person in Switzerland on or before December 15, 2018, instead of September 28,
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`2018; and 5) imposing costs, fees and sanctions against Plaintiff for refusing to resolve discovery
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`issues in good faith and for filing repetitive motions seeking the same relief.
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`The Parties' History
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`The parties' history is outlined in detail in prior decisions ("Prior Decisions") of the
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`Court, and the Court incorporates the Prior Decisions by reference as if set forth in full herein.
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`As noted in the Prior Decisions, the Complaint alleges that Defendant was and is the owner of
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`property ("Property") located at 299 Oakley Court, Mill Neck, New York, and that the parties
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`entered into an agreement pursuant to which Defendant hired Plaintiff to manage the Property.
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`In the first cause of action, the sole remaining viable cause of action, Plaintiff alleges that
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`Defendant owes Plaintiff no less than $450,000.00 pursuant to the parties' agreement.
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`In its Prior Decision dated January 29, 2016, the Court denied the prior motion by
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`Plaintiff to consolidate the above-captioned action ("Instant Action") with the related action
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`titled Werner J. Wilhelm Wicker v. Shashi Abraham, Sanjana Jon a/k/a Rebecca Jon, John Doe
`and Jane Doe., Nassau County District Court Index Number LT- 002021/15 ("Summary
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`Proceeding"). In its Prior Decision dated July 26, 2016 (Ex. J to Malik Aff.), the Court granted
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`the prior motion by Defendant to dismiss the second and third causes of action in the Complaint,
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`but denied Defendant's motion to dismiss the first cause of action in the Complaint.
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`In its Prior Decision dated June 30, 2017 (Ex. K to Malik Aff.), the Court denied the
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`prior motions by Plaintiff and Defendant to compel disclosure. In addition, in light of
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`Defendant's affirmation that he might seek to amend his answer and/or file a third-party action,
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`the Court set a schedule for the filing of an amended answer, or the filing of a motion to amend.
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`Defendant subsequently filed a motion to amend his answer which the Court granted in its Prior
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`Decision dated January 2, 2018 (Ex. L to Malik Aff.), deeming Defendant's proposed Amended
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`Verified Answer & Counterclaims filed and served. The Court noted in its January 2, 2018
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`decision that at the time that Defendant's motion to amend was filed, Defendant was represented
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`by Peter S. Sanders, Esq. of the law firm of Capell Barnett Matalon & Schoenfeld ("Capell
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`Firm"). Subsequent to the filing of the motion to amend, Ms. Malik ("Malik") replaced Mr.
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`Sanders as counsel for Defendant, and Malik filed the reply papers to Defendant's prior motion
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`to amend.
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`In its Prior Decision dated February 5, 2018 (Ex. B to Desiderio Aff. in Supp.), the Court
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`denied Plaintiff's prior motion for an Order imposing sanctions against Defendant and/or Malik,
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`pursuant to CPLR § 3126 and or 22 NYCRR Part 130, for discovery misconduct and/or
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`frivolous conduct, and striking all documents in this matter filed by Malik's law firm, Warshaw
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`Burstein, LLP. The Court denied that motion based on its conclusion that, in light of
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`Defendant's affirmations regarding his age, language barrier and difficulties in communicating
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`with prior counsel, and in further consideration of Defendant and Malik's affirmations regarding
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`their efforts to uncover relevant evidence which led to the discovery of a document referred to as
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`the Chalasani Letter, Plaintiff had not demonstrated that Defendant's initial failure to produce
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`the Chalasani letter was willful and contumacious, or that Defendant or Malik engaged in
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`frivolous conduct. Nevertheless, given the understanding that Defendant professed as to his
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`'As outlined in the Court's Prior Decision dated February 5, 2018, the Chalasani Letter
`was a letter from Wicker listing numerous items that were addressed at the Property, which was
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`obligations in this case, and his positive relationship with his current counsel, the Court noted
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`that it might take a dim view of any future recalcitrance by the Defendant with respect to any
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`future discovery requests.
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`In support of Plaintiff's motion now before the Court, counsel for Plaintiff ("Plaintiff's
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`Counsel") affirms that on June 11,2018, the Court issued an Order (the "June 11 Order")
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`(transcript at Ex. A to Desiderio Aff. in Supp.) which directed that:
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`...On or before June 22 d, the close of business June 22"d, 2018, Miss Malik
`will produce as the defendant's attorney any documents previously requested
`by the plaintiff, as well as originals of the two letters at issue that the plaintiff
`has sought for some time with respect to Dr. Chalasani.
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`Tr. at p. 3.
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`The transcript of the June 11, 2018 proceedings also contains the following colloquy
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`between Plaintiff's Counsel and the Court (Tr. at p. 8):
`MR. DESIDERIO: If I may have one more request, June 22nd response, may I
`ask your Honor require a sworn response to each of our document requests by
`the defendant.
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`THE COURT: Yes. Absolutely granted. So ordered.
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`Plaintiff's Counsel affirms that Defendant failed to comply with the June 11 Order.
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`Plaintiff's Counsel submits that this is consistent with Defendant's prior conduct in this action,
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`in that Defendant has failed to comply with the Court's directives. Plaintiff's Counsel affirms
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`that he has not received any of the discovery at issue from Defendant or his counsel, including
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`the original letters or Defendant's sworn response. Plaintiffs Counsel submits that Defendant
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`continues to be in violation of the Court's directives, including 1) the Preliminary Conference
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`Order, which required Defendant's compliance with Plaintiffs discovery demands by
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`December 25, 2016, 2) the Court's February 5,2018 Decision, in which the Court stated that it
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`would take a dim view of any future recalcitrance by Defendant with respect to any future
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`discovery request, and 3) the June 11 Order.
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`Plaintiff's Counsel notes that Malik, in response to Plaintiffs prior motion for sanctions,
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`represented to the Court that she and Defendant had begun a comprehensive search for
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`signed by Dr. Prasad Chalasani.
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`documents responsive to Plaintiffs document demands. Plaintiffs Counsel outlines other
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`representations made by Defendant and his counsel regarding discovery, including Defendant's
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`prior assertion that he was not in possession of any responsive documents, which proved to be
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`inaccurate. Plaintiff's Counsel also submits that Defendant and his counsel are in violation of
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`CPLR § 3101(b) which requires a party to amend or supplement a response previously given to a
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`request for disclosure promptly upon obtaining information that the response was incorrect or
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`incomplete when made, or is no longer correct and complete. Plaintiffs Counsel affirms that he
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`has made numerous good faith efforts to obtain discovery from Defendant and his counsel, all of
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`which have been ignored.
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`Plaintiffs Counsel affirms that it has been one year since Defendant undertook his
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`comprehensive search of his records for responsive documents. Plaintiffs Counsel submits that,
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`despite the passage of a year, and the June 11 Order, Defendant "continues in his willful and
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`contumacious discovery non-compliance in this case" (Desiderio Aff. in Supp. at 1114). Thus,
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`Plaintiffs Counsel submits, the Court should impose sanctions pursuant to CPLR § 3126.
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`Specifically, Plaintiff contends, the Court should strike Defendant's pleadings and enter
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`judgment by default in favor of Plaintiff and against Defendant.
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`Plaintiffs Counsel submits, further, that in light of Defendant's persistent refusal to
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`comply meaningfully with Plaintiffs discovery demands, and Defendant's knowingly false
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`statements in responding to Plaintiffs discovery demands, the Court should impose financial
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`sanctions. Plaintiff submits that she is entitled to an award of her legal fees and costs. Plaintiffs
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`Counsel provides an Affirmation of Legal Fees and Expenses in which he affirms that Plaintiff
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`has incurred the total sum to date of $17,800 in legal fees, together with costs of $45.00 for each
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`of the motions outlined in that Affirmation, for a total of $17,980.00 to date. Thus, Plaintiff asks
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`the Court to impose sanctions against Defendant and in favor of Plaintiff in the sum of
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`$17,980.00.
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`In opposition to Plaintiffs motion, and in support of Defendant's cross motion, Wicker
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`affirms that he became acquainted with Plaintiff through their mutual friend Prabhu Parmatma
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`("Prabhu"), who was very sympathetic to Plaintiff and her mother. In or about December 2013,
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`Wicker purchased the property ("Property") at issue as an investment property. The Property
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`was one of the first properties that Wicker purchased for this purpose. The seller of the Property
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`was Chalasani, and Plaintiff was introduced to Wicker as Chalasani's niece, Rebecca Chalasani,
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`and as a friend of Prabhu. As an act of friendship, Wicker permitted Plaintiff and her mother to
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`use the Property. Prabhu asked them to pay the carrying costs of the Property while they were
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`using it. Wicker affirms that the arrangement was never intended to be a long-term lease, or to
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`constitute any type of agreement. Wicker affirms that no oral agreement ever existed between
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`Plaintiff and Wicker.
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`Wicker affirms that he had advised his prior counsel of all of the facts as he knew them,
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`and trusted prior counsel to apply those facts to the law, as appropriate. Based on Wicker's
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`dissatisfaction with his prior counsel, he retained Malik. Malik instructed Wicker to look for any
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`records or documents that Plaintiff was seeking. Wicker affirms that, aside from the documents
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`that he has already produced, he has not located any other documents.
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`Wicker affirms that he is 82 years old and resides in Switzerland. He cannot travel to the
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`United States because he suffers from a severe degenerative spinal disease. His medical
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`condition has left him unable to walk more than a few steps, and even that effort causes him
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`extreme pain. Wicker made Malik aware of his medical condition, and Wicker's doctors have
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`provided evidence of Wicker's inability to travel to the United States.
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`Wicker affirms that he has actively defended this case, which he contends is without
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`merit. Wicker affirms that he learned that Plaintiff converted monies that Wicker had paid to
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`Chalasani to her own corporation, Rebeca Inc. Wicker affirms that Plaintiff never claimed or
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`demanded any fees or salary. Plaintiff lived at the Property on and off, for over one year.
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`Wicker never compensated Plaintiff because Plaintiff never worked for Wicker in any capacity,
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`and their relationship was strictly friendly. Wicker also disputes Plaintiffs claim that she made
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`demands for payment, and affirms that Plaintiff never made any such demands. Rather, it was
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`only when Wicker asked Plaintiff to vacate the Property that she made the claim that she worked
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`for Wicker, which Wicker submits is baseless, and demanded that Wicker pay her $450,000.00.
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`In further opposition to Plaintiffs motion, and in further support of Defendant's cross
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`motion, Malik affirms that neither Defendant's initial Verified Answer and Counterclaims
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`("Answer") (Ex. C to Malik Aff.) nor Defendant's Amended Verified Answer and
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`Counterclaims ("Amended Answer") (Ex. D to Malik Aff. in Supp.) pleaded a Statute of Frauds
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`defense. Malik submits, however, that both the Answer and Amended Answer alleged sufficient
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`defenses to put Plaintiff on notice that her claim could be barred by the Statute of Frauds.
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`Defendant's affirmative defenses, which are virtually identical in the Answer and Amended
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`Answer, are I) lack of privity of contract, lack of standing, 2) indefinite contract terms, and
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`3) lack of consideration. Malik provides a copy of Defendant's proposed Second Amended
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`Verified Answer and Counterclaims (Ex. E to Malik Aff.) which, she affirms, is identical to the
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`Answer and Amended Answer, except that it specifically raises the affirmative defense of the
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`Statute of Frauds.
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`Malik provides an outline of the numerous motions filed in the Instant Action and the
`Summary Proceeding, as well as decisions issued in both of those actions (see Malik Aff. at
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`lpg 8-14; 17-23). Malik affirms that following Defendant's retention of Malik as his attorney in
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`the Instant Action, Malik filed an Amended Third-Party Summons and Complaint but
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`inadvertently failed to amend the Amended Answer to allege a Statute of Frauds defense, calling
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`it a "sheer oversight" (Malik Aff. at 1115). In addition, due to the transition from prior counsel
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`for Defendant to Malik, Malik did not receive the file and records from prior counsel's office
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`until the Spring of this year. Following Malik's appearance in the Instant Action, there were
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`numerous matters that required her immediate attention. Following her surgery on June 29,
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`2018, she was forced to take time off from work, which provided her with the opportunity to
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`review the entire file in depth. Upon this review, the applicability of the Statute of Frauds
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`defense became apparent, prompting the instant cross motion.
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`Malik submits that the Court should deny Plaintiff's motion for sanctions because
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`Defendant's inability to comply with Plaintiffs disclosure demands was not willful but, rather,
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`the result of medical problems suffered by Defendant and Malik. Malik submits that, when
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`considered together, these medical issues provide adequate explanations for all instances of
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`noncompliance.
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`Malik affirms that in the June 11 Order, the Court ordered that Defendant produced all
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`documents responsive to Plaintiffs discovery demands on or before June 22, 2018 and schedule
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`a date certain for Defendant's deposition in Switzerland, at Defendant's expense. Plaintiff's
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`Counsel was permitted to take a team of four to Switzerland, and Defendant was to pay for
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`airfare and per diem expenses. Malik submits that Plaintiff, in her instant motion; is attempting
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`to relitigate her prior claims regarding Defendant's conduct during this litigation, all of which
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`the Court has previously denied. Malik submits that the Court should not consider any conduct
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`occurring prior to the June 11 Order, as these allegations have been resolved by the Court's Prior
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`Decisions.
`Malik affirms that, as outlined by Wicker in his affidavit in support, Wicker is suffering
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`from degenerative spinal condition and has been immobile for most of the year. Malik affirms
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`that Dr. Oliver Meier ("Meier"), Defendant's treating specialist, was ready and willing to appear
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`before the Court to testify on June 14,2018. In support, Malik provides a copy of Meier's hotel
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`booking confirmation for a hotel in Garden City, New York from June 13-15, 2018 (Ex. N to
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`Malik Aff.). The Court, however, determined on June 11,2018 that it would not be necessary to
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`Meier to testify.
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`Malik submits that Defendant's failure to provide sworn responses to discovery demands,
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`or schedule his deposition in Switzerland, was not willful. Malik affirms that when she appeared
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`before the Court on June 11, 2018, her left foot was in a boot, as a result of an injury that she
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`suffered in May when she twisted her left foot and injured her left foot and knee. On June 12,
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`2018, she had an MRI of her left foot and knee. On June 13, 2018, her orthopedist advised her
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`that the MRIs revealed that there was no fracture of the foot, and a slight tear on the knee. The
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`MRI also, incidentally, revealed an aggressive tumor in Malik's femur bone. In support, Malik
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`provides a letter from an orthopedic oncologist dated June 21, 2018 (Ex. 0 to Malik MI). From
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`June 13 through July 22, 2018, Malik consulted with two orthopedic oncologists and went
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`through a battery of tests. When it became clear that she would have to undergo surgery to
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`remove the tumor, she spent days obtaining clearance for surgery, and clearing her calendar so
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`that she could undergo the procedure and have time to recover.
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`Malik affirms that all of her court matters were rescheduled but, due to the time pressure
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`and stress associated with the upcoming surgery, Malik was unable to provide Plaintiffs
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`Counsel with Defendant's sworn responses by July 22, 2018. As Wicker affirms in his affidavit,
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`however, he has no further documents to produce, other than what has already been produced.
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`Therefore, his sworn responses will only refer to documents previously provided. Malik affirms
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`that her health complications were unforeseen, and that "it would defy reason for such a series of
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`events to be fabricated" (Malik Aff. at ¶ 46).
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`Malik affirms that she underwent surgery on June 29, 2018 and the recovery has been
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`lengthy and difficult. She is only able to move around by hopping on one leg, with the
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`assistance of a walker, or by wheelchair. Her doctor has directed her to be completely non-
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`weight bearing until the end of September. She has hired a driver and companion to take her to
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`work, where she can only manage to work a few hours a week, and she now works remotely
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`from her home most of the time.
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`Malik affirms that Defendant does not wish to have any other attorney representing him
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`in the Instant Action. By October, Malik will be able to attend Defendant's deposition, if he is
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`allowed to appear by video conference. Following her surgery, Malik discussed with her
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`surgeon the possibility of flying to Switzerland to attend Defendant's deposition in the Instant
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`Action but her surgeon advised her that he would not clear her to fly until December. In support,
`Malik provides a letter dated July 30, 2018 from her physician who states, inter alia, that Malik
`"will be advanced to weight bearing as tolerated after September 29th1f the X-rays obtained
`during her visit with me show no postoperative complications. After this, she needs another 8
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`weeks of rigorous physical therapy to regain her strength and ambulatory capacity." Malik
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`contacted Plaintiff's Counsel and asked whether he would consent to conducting the depositions
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`in December, and provided him with a copy of her surgeon's letter and discharge papers.
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`Plaintiff's Counsel, however, refused (see email exchange, Ex. Q to Malik Aff.).
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`With respect to Defendant's application to again amend his answer, Malik cites case law
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`holding that defenses that were waived by a defendant's failure to raise them in its original
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`answer or on a pre-answer motion to dismiss may nonetheless be asserted in an amended answer.
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`Malik submits that the oral agreement alleged by Plaintiff is unenforceable pursuant to GOL
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`§ 5-701(a)(1) because it is not performable within a year, and is unenforceable pursuant to GOL
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`§ 5-703(2) because it is an oral contract for the leasing of real property for more than one year.
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`Malik provides a copy of a prior affidavit of Plaintiff in which she affirmed that she lived at the
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`Property for over two years (Ex. T to Malik Aff.). Thus, Malik submits, by Plaintiff's own
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`admission, the purported oral contract between the parties could not have been performed within
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`one year because it involved Plaintiff providing services for more than one year, and Plaintiff
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`alleges that her agreement with Defendant gave her some right to reside in the Property
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`indefinitely. Malik contends, further, that Plaintiff will not suffer undue prejudice based on the
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`amendment, in part because Plaintiff was put on notice of the need to demonstrate the existence
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`of a contract by Defendant's other affirmative defenses asserted in the Amended Answer. Malik
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`contends, further, that the Court should then dismiss this action on the ground that the alleged
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`oral contract between the parties is unenforceable based on the Statute of Frauds.
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`Malik requests that, in the event that the Court denies the other relief requested in
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`Defendant's motion, the Court modify the June 11 Order to permit Defendant's deposition to be
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`conducted on or before December 15, 2018, and that Defendant be permitted to submit sworn
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`responses to Plaintiffs discovery demands on or before September 1,2018. Malik submits that
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`renewal of the June 11 Order is warranted because, subsequent to the June 11 Order, Malik
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`learned that she needed emergency surgery, which she underwent on June 29, 2018. Malik
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`submits that her unforeseeable health issues warrant a modification of the June 11 Order in light
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`of her doctors' concerns regarding her traveling overseas prior to December.
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`Finally, Malik contends that the Court should impose sanctions against Plaintiff for
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`frivolous motion practice. Malik submits that Plaintiff has filed the same motion repeatedly in a
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`"desperate attempt" to sanction Defendant or strike the pleadings (Malik Aff. at ¶ 89). Malik
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`contends that the Court's prior rulings denying Plaintiff's prior motion for sanctions, including,
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`its February 2, 2018 decision, is the law of the case. Moreover, despite Malik's disclosure of
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`private medical information to Plaintiffs Counsel and good faith attempts to resolve the dates of
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`Defendant's deposition, Plaintiff instead chose to file another motion for sanctions. Under these
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`circumstances, Malik submits, the Court should impose sanctions against Plaintiff for frivolous
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`motion practice.
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`In response to the cross motion, Chalasani denies many of Defendant's assertions.
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`Chalasani affirms, inter alia, that 1) he did not have any conversation with Wicker and did not
`work for him; 2) he never made any misrepresentations to Wicker; and 3) he "rejects" Wicker's
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`claim which is "a false story" (Chalasani Aff. at ¶ 39).
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`In further response, Plaintiffs Counsel submits that the Court should deny Defendant's
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`motion to renew because Malik previously requested identical relief, specifically further
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`adjoumment of the deposition of and document production by Defendant. Plaintiffs Counsel
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`affirms that Malik made those prior applications in letters to the Court dated June 27, 2018.
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`Moreover, Plaintiff's Counsel affirms, the Court has already denied Defendant's request for any
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`further adjournment of the discovery deadlines set forth in the June 11 Order in response to
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`Malik's letters. Thus, Plaintiffs Counsel submits, Defendant's cross motion is frivolous, and
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`warrants the imposition of sanctions.
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`Plaintiffs Counsel contends, further, that even if the Statute of Frauds were applicable to
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`the Instant Action, which he submits it is not, Defendant waived this affirmative defense by
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`failing to raise that affirmative defense in his Answer and Amended Answer. Moreover, while
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`the Court has discretion to permit the amendment, the Court should not do so where, as here, all
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`of the facts on which the defense is based were known to Defendant before Plaintiff commenced
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`the action, and could have been pleaded earlier. Plaintiffs Counsel submits, in any case, that the
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`RECEIVED NYSCEF: 09/21/2018
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`Statute of Frauds is inapplicable to the Instant Action because there is no allegation that the
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`agreement was to continue for more than a single year, and there is no other allegation which
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`would involve the Statute of Frauds. Moreover, as the at-will agreement alleged by Plaintiff
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`could have certainly been performed by both parties within one year, the Statute of Frauds is not
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`applicable.
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`Plaintiff's Counsel also reiterates his position, as set forth in Plaintiff's motion, that
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`Defendant and his attorney have engaged in frivolous conduct. Plaintiff's Counsel affirms that,
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`in addition to the legal fees and expenses outlined in Plaintiff's motion, Plaintiff has incurred
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`additional legal fees in the amount of $4,800.00 in connection with responding to Defendant's
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`cross motion, and Defendant's opposition to Plaintiff's motion. Plaintiff asks the Court to award
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`Plaintiff those expenses as well.
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`In reply, Malik submits that Plaintiff incorrectly asserts that a defense omitted from and
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`waived by submission of an answer cannot be asserted in an amended answer if based on facts
`known to Defendant at the time of the original answer. Malik cites Gottlieb v. Gurrieri, 2004
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`N.Y. Slip Op. 51193(U) (Sup. Ct. Nassau Cty. 2004) in which the court permitted the
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`amendment even though all of the facts regarding the affirmative defense were known when the
`defendant served his answer citing, inter alia, Mason v. Flager Park Estates, 298 A.D.2d 562
`(2d Dept. 2002). Moreover, Malik accurately notes, Plaintiff has misquoted Radnay v. Charge
`& Ride, Inc., 266 A.D.2d 194 (2d Dept. 1999) (see Desiderio Aff. in Opp. at ¶11) which did not,
`as Plaintiff's Counsel states, involve an attempt to amend a pleading. Malik submits that the
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`Court should permit Defendant to amend his answer to assert the Statute of Frauds defense
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`because it is meritorious, and Plaintiff has failed to demonstrate that unfair surprise or prejudice
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`would result. Malik also reaffirms her contentions that 1) the Statute of Frauds defense entitles
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`Defendant to summary judgment dismissing the Complaint; 2) renewal and modification of the
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`June 11 Order are warranted because Malik has explained her failure to present her medical
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`condition to the Court earlier; and 3) the Court should grant Defendant's motion for sanctions, in
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`part because Plaintiff's opposition completely disregards the fact that any alleged noncompliance
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`since February 5, 2018 has resulted from the medical condition of Defendant and his counsel.
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`C. The Parties' Positions
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`Plaintiff submits that Defendant's failure to comply with the Court's discovery
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`directives, including the June 11 Order, warrants the sanction of striking Defendant's answer and
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`granting Plaintiffjudgment against Defendant. Plaintiff contends, further, that the Court should
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`impose sanctions against Defendant and his counsel for their bad faith conduct, and award
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`11
`11 of 14
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`FILED: NASSAU COUNTY CLERK 09/21/2018 02:41 PM
`NYSCEF DOC. NO. 279
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`INDEX NO. 608360/2015
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`RECEIVED NYSCEF: 09/21/2018
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`Plaintiff the costs that she has incurred in connection with the instant motion and cross motion.
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`Defendant opposes the motion and asks the Court to permit Defendant to amend his
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`answer to interpose a Statute of Frauds defense which, Defendant submits, renders the alleged
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`oral agreement unenforceable. Defendant contends, further, that upon permitting that
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`amendment, the Court should grant Defendant summary judgment dismissing the Complaint.
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`Should the Court not permit Defendant to amend his answer, and grant Defendant summary
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`judgment upon that amendment, Defendant asks the Court to modify its June 11 Order, in
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`consideration of the medical difficulties suffered by Defendant's counsel. Defendant asks the
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`Court to permit Defendant to be deposed either by video conference before October 31, 2018 or
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`in person in Switzerland on or before December 15, 2018, and permit him to submit sworn
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`responses to Plaintiff's discovery demands on or before September 1,2018. Defendant also
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`asks the Court to impose sanctions against Plaintiff who, Defendant submits, has engaged in
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`frivolous motion practice. Malik submits that Plaintiff has improperly filed the same motion
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`repeatedly, seeking to sanction Defendant or strike his pleadings despite the Court's prior denial
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`of that relief Moreover, Defendant contends, Plaintiff's Counsel has refused to consider
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`Malik's good faith attempts to resolve the dates of Defendant's deposition, which were
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`necessitated by her unforeseeable and serious medical condition, and instead filed the instant
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`motion, which is without merit.
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`RULING OF THE COURT
`A. Relevant Discovery Principles
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`The nature and degree of the penalty to be imposed on a motion pursuant to CPLR
`§ 3126 is a matter generally left to the discretion of the Supreme Court. Greene v. Mullen, 70
`A.D.3d 996 (2d Dept. 2010), citing Reyes v. Vanderbilt, 303 A.D.2d 391 (2d Dept. 2003),
`quoting Patterson v. New York City Health & Hosps. Corp. [Queens Hasp. Ctr.], 284 A.D.2d
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`516, 516-517 (2d Dept. 2001). To invoke the drastic remedy of striking a pleading, or of
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`preclusion, however, a court must determine that the party's failure to disclose is willful and
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`contumacious. Greene v.