This action concerns a contractual dispute between defendants, Zepsa Industries, Inc. and Eduard Zepsa, and plaintiff, Robin Eshaghpour. Defendants now claim that plaintiff has willfully failed to comply with their discovery requests and move to (1) strike plaintiff's amended complaint; (2) preclude him from offering evidence at trial to the extent such proof was requested by defendants but not provided by plaintiff; and/or (3) compel him to provide defendants with a breakdown of costs associated with the allegations and causes of action presented in his complaint. Plaintiff alleges similar deficiencies in defendants' production and cross-moves to compel defendants to provide outstanding discovery. Defendants' motion is granted in part and denied in part. Plaintiff's cross-motion is denied as waived.

CPLR 3126 permits this court to strike a party's pleadings and/or preclude it from offering evidence at trial if it finds that the party willfully failed to disclose information that should have been disclosed. Defendants contend that sanctions are appropriate because plaintiff has failed to fully comply with defendants' discovery requests after more than four years of litigation and eight court orders. (See NYSCEF Nos. 162, 163, 165, 166, 167, 171, 172, 185.) In response, plaintiff asserts that this failure was not willful but a result of matters outside his control. (See NYSCEF No. 187 at ¶ 10, 11, 13, 16, 18 [detailing delays due to plaintiff's substitution of attorneys, medical issues, the death of a friend, and the COVID pandemic].)

Plaintiff also claims that (1) defendants' motion should be denied because they failed to confer in good faith as required by Local Rule 202.7 and (2) their motion does not specify what discovery they are seeking.^[FN1]

Contrary to plaintiff's first claim, defendants' failure to comply with section 202.7 is not fatal to their motion. Defendants' motion papers demonstrate their efforts to resolve the discovery dispute—as well as plaintiff's repeated failures to comply with this court's orders ^[FN2] —and "show that further efforts to [do so] . . . without motion practice would have been futile." (Lehrman v Lehrman, 211 AD3d 582, 583 [1st Dept 2022].)

In terms of plaintiff's second claim, defendants satisfactorily describe plaintiff's outstanding discovery in their attorney's affirmation. (NYSCEF No. 160 at ¶ 44 ["Upon review of [the link with plaintiff's files], Plaintiff still has not produced any details of the basis of his alleged claims against Defendants. Additionally, Plaintiff has, once again, failed to produce his responses to Defendants' February 2019 interrogatories or a breakdown of costs associated with and/or arising from the allegations/causes of actions set forth in the Complaint."].) Plaintiff's purported ignorance on this point is further belied by his letter-submission of a "Damages Interrogatory Response" to defendants on July 6, 2022—almost three weeks after defendants filed their motion.^[FN3]

Plaintiff claims that "the [March] 10, 2022 email from Defendants' counsel explicitly agrees that the schedule set when counsel herein joined the case was too ambitious and needed to be extended. As this undermines Defendants' entire motion, it was obviously (frivolously) omitted." (NYSCEF No. 187 at ¶ 39.) The court disagrees. Defendants did not, in fact, agree at the time of their email that the discovery schedule should be extended; rather, it was "in advance of the last Conference and Order, even before [Mr. Gold] formally appeared as counsel in this action" that defendants advised him that his discovery schedule was inadequate. (NYSCEF No. 188 at 2-3.) Defendants' email further states that, in response to their advice, plaintiff's counsel "disagreed and established the schedule that he/plaintiff believed was reasonable, and [defendants' counsel's] firm/defendants acquiesced." (Id. at 3.) Thus, defendants were seeking to avoid the precise scenario that caused defendants now to bring this motion: Plaintiff's failure to adhere to its proposed and subsequently court-ordered discovery schedule.

The court is sympathetic to plaintiff's various challenges in litigating this action. But it concludes that "[t]he record demonstrates that [he] willfully and contumaciously failed to [*2]meaningfully comply with [his] discovery obligations. . . ." (SW Prods., Inc. v CBGB Festival, LLC, 172 AD3d 593, 593 [1st Dept 2019].) The court thus grants that branch of defendants' motion seeking to preclude plaintiff from offering as proof evidence requested by defendants but not provided by plaintiff as of August 1, 2022. (See NYSCEF No. 202 at 7.) The branches of defendants' motion requesting that the court strike plaintiff's amended complaint and/or compel discovery are denied.

Plaintiff cross-moves for an order compelling defendants to disclose the outstanding discovery set forth in his good-faith letter of July 21, 2022. But defendants' discovery responses were provided to plaintiff in November 2019. Plaintiff only now—three years later—seeks to object to the sufficiency of that production. Plaintiff has waived that objection. The cross-motion is denied.

Accordingly, it is

ORDERED that the branch of defendants' motion seeking to preclude plaintiff from offering as proof evidence requested by defendants but not provided by plaintiff as of August 1, 2022, is granted; and it is further

ORDERED that the branches of defendants' motion seeking dismissal of plaintiff's amended complaint and compelling plaintiff to provide defendants with a breakdown of costs are denied; and it is further

ORDERED that plaintiff's cross-motion is denied.