Recitation, as required by CPLR 2219 (a) of the papers considered in review of these motions:

Plaintiff moves by order to show cause for an order: sanctioning Our Lady of Guadalupe Church and School (OLG) and its counsel the sum of $10,000 each for misconduct, including failing to make a good faith search for discoverable records, falsely representing that a good faith search was conducted on behalf of OLG, signing an affidavit with false and misleading statements, and representing that OLG's affidavit was not frivolous (motion sequence no. 13).

On March 12, 2020, Plaintiff commenced this action, pursuant to the Child Victims Act (CVA) by e-filing the summons and complaint with the Kings County Clerk. The complaint alleges that Plaintiff was sexually abused as a child while attending OLG by her then teacher, Mr. P.

Plaintiff moves for sanctions against OLG and its counsel for their purported failure to [*2]make any meaningful effort to respond to discovery requests until one month prior to the close of discovery. Plaintiff submits that in response to Plaintiff's second motion to compel, OLG represented to the court "(1) 'the Defendants have fully complied with all discovery requests,' (2) the 'Defendants have responded to Plaintiff's discovery demands and produced all relevant documents in their possession,' and (3) the 'Defendants have already provided discovery responses to Plaintiff containing any and all responsive documents currently in the Defendant's possession' " (Plaintiff's Memo of Law at 6). According to Plaintiff, at the time OLG made this representation, the only documents OLG had produced were its certificate of incorporation and Plaintiff's attendance records at OLG (see id. at 6-7). Plaintiff highlights that "OLG's response to virtually every single discovery request was that OLG was 'not in possession of any documents responsive to' the request, including any records regarding the perpetrator, Mr. [P.]" (Plaintiff's Memo at 7).

Plaintiff further contends that OLG failed to comply with the court's August 2, 2024 order which directed OLG to produce "(1) all documents regarding [Mr. P.], including all documents reflecting the relationship between any defendant and [Mr. P.], (2) all documents regarding the relationship between any defendant with regard to OLG, and (3) all documents that reflect the names of individuals who may have personal knowledge regarding the factual issues in this case;" and to "provide a Jackson affidavit ^[FN1] describing their efforts to locate the requested information and documentation" (Plaintiff's Memo at 9). Plaintiff submits that "[n]ot a single document was provided by OLG. Instead, OLG again represented that it was 'not in possession of any documents' responsive to Plaintiff's discovery requests, including any records regarding [Mr. P.] and including any records responsive to [Plaintiff's] supplemental requests" (Plaintiff's Memo at 9-10).

OLG ultimately provided a Jackson affidavit on September 13, 2024, which identifies two personnel files for Mr. P. According to Plaintiff, R.R., OLG's designated corporate representative and signatory to the Jackson affidavit, admitted during his October 30, 2024 deposition testimony that his affirmation was false and misleading in that "he never did a search of OLG's records," rather, "OLG's lawyers did the search" and "OLG's lawyers found the file" (Plaintiff's Memo at 12). Plaintiff asserts that R.R. testified that "OLG was not even asked to look for responsive records until about three weeks before its deposition, and at no point did OLG's counsel inform OLG that it was representing to Plaintiff that no responsive records existed" (Plaintiff's Memo at 15).

In opposition, OLG submits that the court should read R.R.'s deposition testimony together with the affirmation of counsel, which will make "it apparent that although not specifically stated in [R.R.]'s Affirmation, the search was a collaboration between the two of them" (Defense Aff ¶ 34). OLG contends that these documents together establish that,

[R.R.] greeted [counsel] upon his arrival to the Church, directed him where to find records that may be responsive to the demands, and was readily available for questions [*3]and discussions regarding said records. [Counsel] undertook the search, with the assistance of [R.R.]'s instructions, and upon the conclusion of the search, the results of same were discussed and [R.R.]'s Affirmation was prepared in accordance with the Court's directive

(Defense Aff ¶ 35). OLG's counsel concludes that Plaintiff's assertion that counsel knowingly had OLG sign an affirmation with false and misleading statements is "simply inaccurate" (id.).

Plaintiff moves for sanctions against both OLG and its counsel for what Plaintiff believes to be frivolous conduct regarding disclosure of relevant records pursuant to CPLR 8303-a, CPLR 3126, and 22 NYCRR 130-1.1. Each basis for monetary sanctions is addressed in turn.

As relevant here, CPLR 8303-a empowers the court to impose costs and reasonable attorney's fees of up to $10,000 upon any party or its attorney who has "commenced or continued" any tort action, claim, counterclaim, defense, or cross-claim that is determined to be "frivolous" within the meaning of the statute. The express language of CPLR 8303-a limits sanctions to frivolous claims or defenses, but does not extend the statute's reach to all frivolous conduct such as discovery abuses (see Testa ex rel. Testa v Koerner Ford of Syracuse, Inc., 261 AD2d 866, 868 [4th Dept 1999] ["the statute is to be used to examine claims and defenses and may not be expanded to matters such as discovery abuse"]; Harley v Druzba, 169 AD2d 1001, 1002 [3d Dept 1991] [CPLR 8303-a is not proper statute for sanctions for discovery abuses]).

Therefore, in order for CPLR 8303-a to apply here, Plaintiff must allege that OLG's defense, counterclaim, or cross-claim is frivolous within the meaning of the statute. The court notes that OLG's answer does not contain any counterclaim or cross-claim (see NYSCEF Doc No. 28, Answer to Amended Complaint). The answer asserts 20 affirmative defenses (see id.), none of which Plaintiff alleges are frivolous. Rather, Plaintiff's instant motion challenges the truthfulness of OLG's responses to Plaintiff's discovery demands. Since Plaintiff does not allege that OLG's defenses are frivolous, an award of costs pursuant to CPLR 8303-a is improper (see Cruz v Edwards, 260 AD2d 341, 342 [2d Dept 1999]).

Under CPLR 3126, when a party "refuses to obey an order for disclosure or willfully fails to disclose information," the court has the discretion to "make such orders with regard to the failure or refusal as are just," including the imposition of monetary sanctions (CPLR 3126; see Lucas v Lawrence Stam, Susan Gordon, Martin Clearwater & Bell, LLP, 147 AD3d 921, 926 [2d Dept 2017] [a monetary sanction may be imposed under CPLR 3126]; see also Maxim, Inc. v Feifer, 161 AD3d 551, 554 [1st Dept 2018]). The remedies permitted by CPLR 3126, however, are only available prior to the filing of the note of issue (J. H. v City of New York, 170 AD3d 816, 818 [2d Dept 2019]). Once the plaintiff has filed the note of issue and certificate of readiness, any objection to the sufficiency or timeliness of a defendant's disclosures is deemed waived (see id.; Iscowitz v County of Suffolk, 54 AD3d 725, 725 [2d Dept 2008]; cf. Nationstar Mtge., LLC v Jackson, 192 AD3d 813, 816 [2d Dept 2021] [plaintiff did not waive its objection to the defendant's failure to meet its disclosure obligations since the plaintiff's motion pursuant to CPLR 3126 was pending prior to the date the plaintiff filed the note of issue]).

In this case, Plaintiff refiled the note of issue and certificate of readiness on December 4, 2024 (see NYSCEF Doc Nos. 97, 359). The instant motion was filed one month later on January 3, 2025. Although Plaintiff could have taken steps to avoid waiving any objection to OLG's [*4]discovery deficiencies — such as seeking leave to serve and file a conditional note of issue or moving for an extension of time to file the note of issue — none are apparent on this record (see CPLR 2004 [court may extend time fixed by statute, court rule or order upon good cause shown]; Cadichon v Facelle, 18 NY3d 230, 247 [2011, Graffeo, J., dissenting] [noting that plaintiff could have taken appropriate steps "such as moving for permission to serve and file a conditional note of issue (noting the outstanding discovery) or moving for an extension of time to file the note of issue"]). In any event, Plaintiff repeatedly insisted that this application "is not a discovery dispute" (1/23/25 tr at 4, 9).

For these reasons, the branch of Plaintiff's motion seeking sanctions under CPLR 3126 must be denied.

The Rules of the Chief Administrator of the Courts permit a court, in its discretion, to impose financial sanctions upon a party or an attorney who engages in "frivolous conduct" (22 NYCRR 130-1.1 [a]). Conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false

(22 NYCRR 130-1.1[c]). To determine whether sanctions are appropriate under 22 NYCRR 130-1.1, the court must consider all relevant facts concerning "the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party" (id.).

Here, the court is asked to examine OLG's conduct and truthfulness during the discovery process. The court has considered the record in this case with careful attention to the sworn statements and representations made by OLG and its counsel in responding to discovery requests. OLG first appeared in this action by notice of appearance served and filed on July 16, 2020, which is approximately 4 ½ years prior to the filing of the instant motion (see NYSCEF Doc No. 8). At the time that issue was joined in this case, Case Management Order No. 2 (CMO No. 2), requiring disclosure of a wide range of materials, was already in effect. A copy of CMO No. 2 was filed in this case on June 18, 2020 (see NYSCEF Doc No. 7).

In its Response to Standard Automatic Disclosures Directed at Defendants dated February 2, 2024, OLG mostly objected to the automatic disclosures contained in CMO No. 2 and stated that OLG is not in possession of any responsive records (see NYSCEF Doc No. 375, Plaintiff's Exhibit 10). For example, OLG responded that it: (1) did not possess documents relating to allegations of sexual abuse against the alleged perpetrator arising from conduct that occurred prior to and during the abuse alleged, as required by standard automatic disclosure No. 1; (2) did not possess personnel files of the alleged perpetrator, as required by standard automatic disclosure No. 3; (3) has not located background checks of the alleged perpetrator, as required by standard automatic disclosure No. 5; and (4) has not located any written or recorded statements made by or on Plaintiff's behalf regarding the abuse allegations in this action, as required by standard automatic disclosure No. 6 (see id.).

Similarly, in OLG's Response to Plaintiff's Common Combined Discovery Demands [*5]dated February 2, 2024, OLG represented that it did not possess a complete personnel, employment, or similar file for the alleged abuser, including any application to work for OLG, the alleged abuser's resume, or any employment agreement that governed the work or services the alleged abuser provided OLG (see NYSCEF Doc No. 376, Plaintiff's Exhibit 11). In OLG's Response to Plaintiff's Notice to Produce dated February 16, 2024, OLG continued to represent that it was not in possession of any documents responsive to Plaintiff's request for documents regarding inappropriate conduct alleged against Mr. P. or personnel files for Mr. P. (see NYSCEF Doc No. 377, Plaintiff's Exhibit 12).

Thereafter, Plaintiff filed two motions to compel disclosures. In a decision and order dated August 2, 2024, another justice of this court directed OLG to produce, on or before August 23, 2024, inter alia, all documents regarding Mr. P., supplemental discovery responses, and a Jackson affidavit describing OLG's efforts to locate the requested information and documentation (see NYSCEF Doc No. 273). On August 23, 2024, OLG again stated that it was not in possession of any responsive documents. Despite the court's order, however, a Jackson affidavit was not provided by August 23, 2024. In a Follow Up CVA Compliance Conference Stipulation and Order, the court again directed OLG to provide its Jackson affidavit, this time by September 13, 2024 (see NYSCEF Doc No. 312).

On September 13, 2024, OLG filed the affirmation of R.R. in response to Plaintiff's demand for an affidavit of search (see NYSCEF Doc No. 290). R.R.'s affirmation states, in relevant part,

8. I conducted a search of all locations within the Parish Any records in the Parish's possession would be located within our rectory office at the same address.

9. The Parish maintains and updates its own records of baptisms, first communions, confirmations, and marriages ("sacramental records"). Within these records I located the entries for Plaintiff [C.B.]'s Communion and Confirmation. I arranged for these entries to be scanned and provided to counsel for the Parish.

12. The Parish also maintains older records and documents in a storage room in the basement. Any responsive records would be stored in filing cabinets located in the same room.

13. After a search of the basement storage room, I located two (2) manila folders labeled with the name [Mr. P.]. I arranged for copies of the folders and documents contained within them to be scanned and provided to counsel for the Parish.

14. Additionally, within the basement storage room I located three (3) booklets commemorating significant events and milestones for the Parish. These included booklets commemorating the 75th and 100th anniversaries of the Parish and a booklet commemorating the Parish dinner-dance held on May 13, 1988. I arranged for these entries to be scanned and provided to counsel for the Parish

(NYSCEF Doc Nos. 290, 387). On October 2, 2024, OLG provided approximately 121 pages of responsive documents to Plaintiff (see NYSCEF Doc Nos. 389, 390). OLG's October 2, 2024 disclosures included, among other things, Mr. P.'s resume; complaints against Mr. P., including an advisement "not to lay a hand or grab any student" and that two reading notebooks from his official seventh grade class "were a disgrace;" and meeting notes, which document Mr. P. providing Plaintiff with several articles about "What every teenager should know about sex & relationships," sections of an article about sexual behaviors, sexual abuse prevention education, and sexual assault among adolescents (see NYSCEF Doc No. 390).

In a letter to Plaintiff's counsel dated October 11, 2024, OLG's counsel represented that,

an additional search was conducted on September 13, 2024, for documents relevant to the instant action. The records were located on the property of [OLG] Parish. Specifically, the records were located within a file cabinet kept in a basement storage room. The Affirmation of [R.R.] details the efforts made to locate the produced documents with further specificity. Following receipt of these records from our client, our office served the Second Supplemental Responses to Plaintiff's Notice to Produce dated October 2, 2024

R.R. was deposed on October 30, 2024 (see NYSCEF Doc No. 381, Plaintiff's Exhibit 16). At his deposition, R.R. described the basement of the parish as "a small room" with "several filing cabinets" each containing records arranged alphabetically (id. at 23-25). R.R. further testified that he searched for the records in the basement "recently" and he was not aware of anyone asking him or anyone else at the parish to look for records regarding Mr. P. before that time (id. at 27). He was not aware of any request made "three or four years ago" by Plaintiff to produce records regarding Mr. P. (id. at 28). R.R. further represented that he was not aware that his counsel repeatedly stated to Plaintiff that documents regarding Mr. P. did not exist (id. at 29-30). He conceded that he never bothered to look in the basement for records regarding Mr. P. because he "was under the assumption that the school records were all sent to the archives" (id. at 31-32). R.R. also testified at his deposition that he was not aware that Plaintiff requested parish records because, if he was aware, "it would have been sent to counsel" and that the request for such was not made until "the last couple of weeks" (id. at 32-33).

Regarding the search that was actually conducted, R.R. stated that a few weeks prior to his deposition, the lawyers came for the first time and looked for records (Plaintiff's Exhibit 16 at 28, 36). He testified that "counsel did the search, [that he] allowed counsel to do the search" (id. at 36-37). With respect to paragraph 13 of R.R.'s affirmation which states, "After a search of the basement storage room, I located two (2) manila folders," he conceded that he "was not aware of doing that, though" and believed "that was done by the counsel" because he "didn't go through them" (id. at 38-39). In paragraph 14 of R.R.'s affirmation wherein he states, "I located three (3) booklets commemorating significant events and milestones for the Parish," R.R. conceded that he himself did not locate them and counsel did instead (id. at 39-40). When confronted with OLG's February 2024 discovery responses, R.R. admitted that at the time those discovery responses were submitted, he "hadn't even been asked at that point if any of th[o]se records existed" (id. at 41-44). He further conceded that he was not "even asked if [he] had any of th[o]se types of records until the last few months" (id. at 44).

The foregoing facts indicate to this court that OLG repeatedly represented to Plaintiff that relevant, material documents were not in its possession despite failing to conduct a good faith search for such records at the time it made its representations. The representations made by OLG in its discovery responses are especially troubling given the directives expressly set forth in CMO No. 2. For example, Section IX.C.3 of CMO No. 2 required OLG to produce all documents "relating to any allegations of sexual abuse against the alleged perpetrator arising from conduct that occurred prior to and during the abuse alleged" and "all personnel files of the alleged perpetrator," among other documents (NYSCEF Doc No. 7, CMO No.2, Exhibit C). In violation of the clear disclosure requirements of CMO No. 2, OLG failed to even undertake a diligent search for such records and instead represented to Plaintiff and the court that it did not [*6]possess relevant documents. The October 2, 2024 disclosures along with R.R.'s admissions at his deposition show that these representations were inaccurate. Nevertheless, R.R. signed and allowed counsel to submit to the court an affirmation which did not accurately represent the circumstances of defendant OLG's search for relevant records.

Equally, if not more concerning to this court, is the conduct of OLG's counsel which furthered the misrepresentations. It was misleading, at best, for counsel to represent that no documents were in OLG's possession when counsel had not even directed OLG to search for relevant records regarding the parish, the school, and/or Mr. P. Counsel prepared and submitted the February 2024 responses, each accompanied by a certification pursuant to 22 NYCRR 130-1.1 that "upon information and belief and responsible inquiry, the contentions contained in the annexed documents are not frivolous" (see Plaintiff's Exhibits 10, 11, 12 [emphasis added]). Despite counsel's certification, R.R.'s deposition testimony indicates that he was never asked to conduct a search at that time. Even after the deposition testimony and firsthand knowledge of the search, OLG's counsel represented to this court that "there are no material statements of fact that are false in that [Jackson] affidavit" (1/23/25 tr at 10). This position is clearly contrary to R.R.'s sworn statements under oath and the admissions in the affidavit of counsel attached as OLG's Exhibit C. By way of example, R.R. repeatedly stated in his affirmation that he conducted the search himself and he himself found such documents, but both he and counsel admitted it was counsel who did the search and found the documents, not R.R. To the extent that counsel attempts to minimize the significance of R.R.'s testimony as being "unclear" whether counsel was present for the search (see 1/23/25 tr at 12), the court disagrees. R.R. unequivocally stated that it was only counsel who did the search and once counsel found the relevant documents, R.R. viewed them.

Moreover, once Plaintiff received the Jackson affidavit and requested clarification, OLG's counsel failed to explain the circumstances of the search despite having the opportunity to do so prior to the filing of the instant motion. Instead, counsel simply referred Plaintiff back to the misleading affirmation stating, the "Affirmation of [R.R.] satisf[ies] any outstanding discovery requirements in the instant action and provide[s] sufficient clarity as to the manner in which the search was conducted" (see NYSCEF Doc No. 392, Plaintiff's Exhibit 27 [emphasis added]). It was not until January 21, 2025, in opposition to the instant motion, that counsel for OLG for the first time clarified the true circumstances surrounding the search (see NYSCEF Doc No. 411, OLG's Exhibit C).

The court takes this opportunity to emphasize that the integrity of our judicial system "is dependent on all parties engaged in litigation abiding by the rules of proper practice" (Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010]). Here, both OLG and its counsel repeatedly made misleading representations to Plaintiff and this court regarding the efforts to locate responsive documents and its possession of such. These misrepresentations related to relevant, material documents which were known to be discoverable at the outset of this case.

Under these circumstances, the conduct of OLG and its counsel is sanctionable as frivolous within the meaning of 22 NYCRR 130-1.1(c)(1) and (3) (see Capetola v Capetola, 96 AD3d 612, 613-614 [1st Dept 2012]).

Upon a finding a frivolous conduct, the court "may award costs or impose sanctions or both" upon a party or an attorney but in no event shall the amount of sanctions exceed $10,000 for any single occurrence (22 NYCRR 130-1.2). Here, Plaintiff does not seek an award of costs, but only sanctions against both OLG and its counsel in the sum of $10,000 each. Regarding [*7]OLG, the court finds that its conduct, namely submitting a misleading affirmation, is sanctionable in the sum of $1,500. With respect to the conduct of OLG's counsel, namely submitting multiple discovery responses without verifying that a good faith search for records had been performed and submitting a misleading client affirmation, along with the length of time whereupon these representations were made, the court finds sanctions in the sum of $3,500 to be appropriate.

Pursuant to 22 NYCRR 130-1.3, OLG shall deposit with the Kings County Clerk the sum of $1,500, as sanctions, for transmittal to the Commission of Taxation and Finance, within 30 days of service of a copy of this decision and order, with notice of entry, upon OLG.

Pursuant to 22 NYCRR 130-1.3, OLG's counsel shall deposit the sum of $3,500 with the Lawyers' Fund for Client Protection established pursuant to section 97-t of the State Finance Law, within 30 days of service of a copy of this decision and order, with notice of entry, upon OLG's counsel.

In accordance with the foregoing, it is hereby:

ORDERED that Plaintiff's order to show cause (motion sequence no. 13) is granted to the extent indicated herein; and it is further

ORDERED that the conduct of OLG and its counsel is sanctionable as frivolous within the meaning of 22 NYCRR 130-1.1(c)(1) and (3); and it is further

ORDERED that OLG shall deposit with the Kings County Clerk the sum of $1,500, as sanctions, for transmittal to the Commission of Taxation and Finance, within 30 days of service of a copy of this decision and order, with notice of entry, upon OLG; and it is further

ORDERED that OLG's counsel shall deposit the sum of $3,500 with the Lawyers' Fund for Client Protection established pursuant to section 97-t of the State Finance Law, within 30 days of service of a copy of this decision and order, with notice of entry, upon OLG's counsel; and it is further

ORDERED that Plaintiff shall serve a copy of this decision and order, with notice of entry, upon OLG's counsel and OLG within five (5) days of entry. Plaintiff shall e-file an affidavit of said service within seven (7) days of effectuating service.

Any issue raised and not decided herein is denied.

This constitutes the decision and order of the court.