This action was commenced in 2009, and the request for judicial intervention was filed in April of 2010. On May 26, 2010, the parties appeared for a preliminary discovery conference. In the ensuing order, the parties were required to hold depositions on August 24, 2010 and complete all discovery by December 22, 2010. The Note of Issue deadline was December 29, 2010. Moreover, under paragraph 5 of the order, the parties were required to notify the Court to obtain permission for the adjournments or extensions of the deposition date; paragraph 7 required the parties to contact the Court if they failed to complete discovery by the discovery deadline and/or [*2]as soon a discovery issue arrived; and the additional directives sheet reiterated, in severe language, that the Court may well deem discovery precluded or impose sanctions in the event that the parties failed to comply with these provisions.

Apparently, the parties ignored the discovery order, including the critical provisions which the Court has described above. Moreover, they did not bother to notify the Court that the Note of Issue date had passed or to seek an extension of the original deadline. Finally, on July 20, 2011 — nearly seven full months past the Note of Issue deadline and over a year after the preliminary conference — the Court called in the parties for a status conference. At that conference, the Court learned that the parties had failed to comply with numerous provisions of the May 26, 2010 conference order. Therefore, it issued the following order:

The parties have completely failed to file the Note of Issue, hold depositions and complete discovery by the deadlines in the PC order and in violation of the PC order they have not notified the Court of their delay. In accordance with its PC order, the Court requires that the Note of Issue be filed by August 19 or the action is dismissed pursuant to CPLR 3126 for abject failure to abide by the Court's discovery order.

Subsequently, the parties apparently completed some but not all of the outstanding discovery. Plaintiff filed a Note of Issue dated August 17, which indicated that defendants' depositions and plaintiff's medical examination had not been completed.

Surprisingly, though counsel for defendants Mall Properties and Janoff & Olshan, Inc. were fully aware of their discovery violations and this Court's procedures, based upon their participation in the May 26, 2010 and July 20, 2011 conferences and their possession of the Court orders which emanated from those conferences, they did not seek the outstanding discovery by the deadlines or in any other way seek Court assistance in completing the discovery prior to August 19, 2011. Instead, on September 2, 2011, counsel for these defendants moved to vacate the Note of Issue based on the outstanding discovery.

In addition to counsel's failure to follow the proper procedure or to contact the Court in a timely fashion despite the Court's harsh warning, counsel's motion is deficient in other respects as well. For one thing, counsel ignores the May 26 and July 20 discovery orders, neither mentioning them nor acknowledging their existence and their import. In short, counsel ignores the orders that she violated. The Court will presume that this was due to law office failure; yet, that does not justify the omission of critical information.

For another, the good faith affirmation is defective. Under NYCRR 202.7, an affirmation of good faith must accompany all discovery motions. Moreover, subsection (c) provides that this affirmation must "indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held." Denial of the motion is appropriate where the motion is insufficiently detailed, does not show that the movant tried to obtain ordered discovery prior to initiating the motion or is otherwise inadequate. See, e.g,, Chervin v. Mercura, 28 AD3d 600, 602, 813 N.Y.S.2d 746, 748 (2nd Dept. 2006). An affirmation that does not show the movant attempted to obtain discovery that was previously ordered or scheduled is inadequate. See, e.g., Tine v. Courtview Owners Corp., 40 AD3d 966, 967, 838 N.Y.S.2d 92, 93 (2nd Dept. 2007). Here, counsel states simply that she "attempted to obtain the necessary . . . disclosure from [*3]plaintiff as indicated by the exhibits annexed to the motion papers." Pludwin Aff. at ¶ 3. This affirmation is deficient under the prevailing standards.

Moreover, counsel does not further elaborate as to her good faith efforts, but it appears that she refers to exhibit C, a Notice for Discovery and Inspection. It is not sufficient simply to serve a discovery demand, as the service demand itself can never constitute a "good faith effort" to resolve any noncompliance with that demand. Also, the demand is untimely. According to the exhibit, counsel served the Notice on August 30 — eleven days after the Court-mandated deadline of August 19 and after the Note of Issue was filed. Finally, as counsel served the demand by mail only three days before she served the motion by mail, she did not give them the opportunity to comply with the demand before resorting to motion practice. Indeed, it is unlikely that the parties had received the demand by the time counsel served and filed this motion.

Accordingly, due to the numerous and substantial problems above, it is

ORDERED that the motion is denied.

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DATED:Louis B. York, J.S.C.