The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 were read on this motion to/for DISCOVERY.

This action arises from a dispute about the licensing and operation of a restaurant. Plaintiff, Golden Girls Kitchen, LLC, moves under CPLR 3124 to compel defendant, Lamia Funti, to respond to plaintiff's discovery requests; under CPLR 3122 and 3101 to preclude Funti's objections to plaintiff's discovery requests; and under CPLR 3126 for discovery sanctions against Funti. The motion is granted in part and denied in part.

Plaintiff filed this motion on October 18, 2023. Plaintiff's opening motion papers argue that defendant had not provided any of the requested discovery or responses to interrogatories, and that as a result any objections raised by defendant objections would have to be precluded under CPLR 3122 unless the demands at issue are palpably improper or deal with privileged information under CPLR 3122. (NYSCEF No. 9 at 3, 5.)

On October 30, 2023, one day before Funti's deadline to submit opposition papers on this motion, she served responses and objections and a document production. Funti argues that this discovery response renders academic the branch of plaintiff's motion seeking to compel discovery. (NYSCEF No. 16 at 1-2.) But she does not dispute that the discovery response was untimely.

On reply, plaintiff contends that Funti's discovery response is inadequate. Plaintiff claims that Funti asserted boilerplate objection to almost all the document requests and to the interrogatories and only produced documents that plaintiff previously sent to defendant or that plaintiff did not request. (NYSCEF No. 18 at 2.) Plaintiff also argues that although the response includes assertion of the attorney-client privilege, Funti did not submit a privilege log. (Id. at 3.)

In demand no. 1 of plaintiff's demand for discovery and inspection, plaintiff seeks "[a]ny operating agreement, shareholder agreement, or other agreement by and between the owners of Y&F." (NYSCEF No. 10 at 9.) In demand no. 2, plaintiff seeks all communications between Funti and Chatiris about the agreement, modification, wire transfer, and ejectment action. In demand no. 3, plaintiff seeks "[a]ll communications between Defendant and the Landlord concerning Plaintiff's permission to operate in the Premises." Funti responded to each of these demands that she is not in possession of responsive documents. Funti must, within 30 days of entry of this order, supplement this response with a Jackson affidavit of diligent search, as plaintiff requests. (See Jackson v City of New York, 185 AD2d 768 [1st Dept 1992].)

In response to demand nos. 4, 5, 6, 7, 8, and 10, Funti represents that she attached responsive documents. Plaintiff contends that this production is inadequate because it consisted entirely of documents that Funti had already produced or that plaintiff had not requested in the first place. This court concludes that Funti must conduct a renewed search for responsive documents and must produce any non-privileged documents in her possession, custody, or control that are responsive to these requests and have not previously been produced. To the extent that Funti withholds any responsive documents on privilege grounds, she must provide an appropriate privilege log. If, upon conducting this renewed search, Funti determines that she has no further responsive documents in her possession, custody, or control, she must provide plaintiff with a Jackson affidavit to that effect. Any supplemental production, privilege log, or Jackson affidavit must be provided to plaintiff within 30 days of entry of this order.

In demand no. 9, plaintiff seeks all documents that defendant plans to introduce as evidence at trial. Funti's response was that this request is premature. The court agrees. Funti need not respond further to this demand.

Plaintiff claims that Funti merely asserted boilerplate objections in response to its [*2]interrogatories. With respect to interrogatory nos. 1, 2, and 3, this court agrees. With respect to interrogatory no. 4, Funti's answer, that plaintiff should "see individuals identified in the attached documents," is not responsive to the interrogatory, which asked Funti to identify documents and communications, not people.

Funti must therefore within 30 days of entry supplement her responses to all of these interrogatories. To the extent she withholds responsive information on privilege grounds, she must also provide an appropriate privilege log.

In response to plaintiff's CPLR 3101 (e) demand for statements in Funti's possession "with reference to the lawsuit" (NYSCEF No. 10 at 10), Funti responded that she "is not in possession of statements other than those that may be contained in the attached documents" (NYSCEF No. 17 at 5). Given the sheer breadth and burden of this demand, Funti need not respond further to the demand as drafted. This ruling is without prejudice to plaintiff's serving within 30 days of entry a more focused, specific demand for statements.

Plaintiff contends that Funti has not responded to plaintiff's demands for witness information. Funti's response said only "see individuals identified in the attached documents." (See id. at 5-6.) Funti must supplement this response within 30 days of entry to clarify which individuals, and which documents, she is referring to—with references to particular documents specified by Bates numbering or an equivalent page-specific identifier.

In response to Funti's demand for audio-visual information recorded or taken of plaintiff, Funti stated that she possesses no "such films, photographs, video tapes, audio tapes or audio reproductions or representations." Plaintiff does not explain why this response is insufficient. Funti need not respond further to this demand.

Plaintiff requested information concerning every person that Funti expects to call as an expert witness at trial. Funti's response that she has not retained an expert—and that she will provide an appropriate expert disclosure if and when she does retain one—is sufficient. Funti need not respond further to this request at this time.

Plaintiff demanded copies of any applicable insurance policy, or an affidavit that "no liability insurance of any kind, type or description was in effect at the time of the occurrence complained of." (NYSCEF No. 10 at 12.) Funti's only response, beyond the standard objections, is "not applicable." (NYSCEF No. 17 at 6-7.) This response is insufficient. Funti must within 30 [*3]days of entry either provide all insurance policies and documents responsive to the demand or provide the alternative affidavit-of-no-insurance.

Plaintiff moves for discovery sanctions against Funti under CPLR 3126. Funti did not respond to plaintiff's discovery demands until well after plaintiff made this motion. And, as set forth above, those belated responses were still incomplete. In these circumstances, Funti must pay $500 to plaintiff as a discovery sanction, to offset the costs incurred by plaintiff in making this motion.

Accordingly, it is

ORDERED that the branch of plaintiff's motion under CPLR 3124 to compel Funti to supplement her discovery response is granted in part and denied in part as set forth above, and Funti must provide a supplemental response (including privilege logs and a Jackson affidavit, as applicable) within 30 days of entry of this order; and it is further

ORDERED that the branch of plaintiff's motion seeking CPLR 3126 discovery sanctions is granted to the extent that Funti must, within 14 days of entry of this order, pay to defendant $500.