The following papers numbered 1 to 7 were read on these motions:

There are three motions before the Court in this action arising out of a trip-and-fall. The first motion, filed by defendants White Castle System, Inc. and White Castle Management Co. (collectively, "White Castle"), seeks (1) an order granting summary judgment dismissing the complaint and any cross-claims against White Castle; (2) pursuant to 22 NYCRR § 130-1.1(a), costs to White Castle due to plaintiff's counsel's frivolous conduct; and (3) pursuant to 22 NYCRR § 130-1.1(b), sanctions upon plaintiff's counsel for counsel's frivolous and contumacious conduct. The second motion, filed by plaintiff, seeks (1) to strike White Castle's answer for failing to provide any discovery in this action; and (2) pursuant to 22 NYCRR § 130-1.1(a), sanctions against White Castle for filing a frivolous motion for sanctions. The third motion, also filed by plaintiff, seeks an Order deeming defendant City of Yonkers ("City")'s Responses to Plaintiff's Notice to Admit admissions.

The following facts in this case are undisputed. Plaintiff testified at her 50-h deposition that on October 24, 2024, somewhere around 3 a.m. to 4 a.m., after purchasing food at a White Castle on South Broadway in Yonkers, plaintiff left the premises and walked on the sidewalk towards her home. She testified that as she walked "in front of the parking lot area" that was next door to the White Castle, she tripped and fell. Plaintiff testified that the accident occurred "On South Broadway next to the White Castle in the parking lot area." When shown a photograph of the area, plaintiff indicated where the accident occurred in red ink. There is no dispute that plaintiff designated a portion of the sidewalk in front of the parking lot. The accident did not occur in front of the White Castle or next to it.

There is also no dispute that the address of the White Castle is 257 South Broadway, and the address of the parking lot is 267 South Broadway. There is also no dispute that the location of the accident was at least several yards from the property line between 257 and 267 South Broadway. White Castle commissioned a report by an architect at an engineering firm to determine where the accident occurred, and whether White Castle owned any portion of the sidewalk where it occurred. That report, submitted to the Court, indicates that the firm obtained property records for both 257 and 267 South Broadway, and confirmed that White Castle has no legal or property interest of any sort in 267 South Broadway. The only deed that the firm could uncover for 267 South Broadway was from 1968 and indicates that the owners are (or were) a couple named Robert and Marguerite Dillon. However, it is very clear, from the signage on the parking lot, as well as the statements on the Record, that the property is operated by the Yonkers Parking Authority. The report notes that the tax billing for 267 South Broadway directs all taxes to Yonkers City Hall.

At a Court conference on October 28, 2025, counsel for plaintiff stated that it was "our position we are entitled to a Jackson Affidavit, anything of that nature saying that they don't have records there of or statements from someone in White Castle with knowledge saying they never [sic] maintained anything [sic] to maintain that sidewalk." Counsel for White Castle stated that he had obtained such a statement, and that it would be sent to counsel, if it had not been done already. The Court asked if plaintiff would let White Castle out of the action once they had received the statement, and counsel for plaintiff responded "Yes. If the affidavit is sufficient, yes, we would." The Court noted that "Somebody is responsible, but it's not White Castle," to which counsel for plaintiff responded "Yes." Counsel for the City agreed with this assessment, stating "I agree, it's not White Castle."

The Court then discussed the specifics of the affidavit with the parties, with counsel for plaintiff stating on the Record that all she needed it to state was that White Castle had never [*2]maintained the sidewalk in front of 267 South Broadway and had no records of ever doing so. The Court directed plaintiff's counsel that "by the end of week I would like either a stipulation or an agreement or it has to be that you are withdrawing as to them. I mean, you can say without prejudice, you can say whatever in case something shoots up in the middle of whatever, but I don't think it's going to happen," to which counsel for plaintiff responded "Yes." The Court directed that if plaintiff failed to agree, White Castle should make a motion, attaching the affidavit "which is going to be evidentiary in nature."

Yet counsel for plaintiff did not agree to dismiss White Castle from the action, even after receiving the affirmation from White Castle's District Supervisor. This affirmation states that the District Supervisor is responsible for the oversight and management of 257 South Broadway. She states that White Castle does not own or use the parking lot located next door. She further states in her affirmation that "White Castle employees do not clean, sweep, shovel, maintain, or repair the public parking lot or the sidewalk immediately adjacent to it, and did not do so prior to October 19, 2024. Furthermore, White Castle did not retain any third party vendor or contractor to clean or maintain the public parking lot and the sidewalk adjacent to it." Despite this affirmation, clearly satisfying the requirements that counsel for plaintiff stated on the Record that she would find sufficient, plaintiff refused to dismiss White Castle from the action.

In an email exchange submitted to the Court on this motion, counsel for plaintiff (who was not the lawyer present at the Court appearance on October 28th) rejected the affirmation as inadequate, stating that he wanted "an affidavit that states there are no maintenance and repair records. Your affirmation merely states, in conclusory fashion, they do not maintain that sidewalk. I need maintenance and repair records of YOUR sidewalk - and if there aren't any, a jackson [sic] affidavit needs to be produced affirming there are no maintenance and repair records for that sidewalk. Your self serving [sic] affirmation is not sufficient. Given the history of how discovery is proceeding, I do not intend on discontinuing anyone before depositions."

In response, counsel for White Castle stated that "Judge Jamieson did not direct us to provide a Jackson affidavit. She told us to provide the affirmation that I sent you earlier. Whether White Castle did or did not maintain the sidewalk next to their building is irrelevant because your client fell on the adjacent property, not ours. We've provided an expert's report confirming the fall didn't happen on White Castle's property, and we've provided a sworn affirmation that White Castle did not have anything to do with the sidewalk where your client fell." Counsel for plaintiff responded by stating "Daniel, you must really think I am some amateur, huh? You think a self serving [sic] conclusory affidavit will get you out of this case? Hilarious. You WILL produce the discovery or you WILL produce a Jackson Affidavit. Provide same within 7 days or be forced to Oppose a motion to Strike. I've just about had it with your tactics."

The Court is, frankly, astonished at the response of counsel for plaintiff. The Court directed White Castle to produce a statement from someone with knowledge indicating whether there were any records showing that White Castle maintained or had anything to do with the sidewalk in front of 267 South Broadway, the undisputed area of the accident. The Court further stated that such a statement would be evidentiary. White Castle produced exactly such a statement, demonstrating that it did not, in fact, have any records indicating that it had ever cleaned, swept, shoveled, maintained, or repaired "the public parking lot or the sidewalk immediately adjacent to it, and did not do so prior to October 19, 2024." The affirmation further stated that "White Castle did not retain any third party vendor or contractor to clean or maintain [*3]the public parking lot and the sidewalk adjacent to it."

The Court did not direct White Castle to produce a statement about the maintenance of the sidewalk in front of its premises, 257 South Broadway, because that location is utterly irrelevant to the accident at issue. The Court finds that plaintiff's refusal to dismiss White Castle from the case is inexplicable and discourteous (at best) and defies the directive that the Court made — and which counsel for plaintiff agreed to on the Record. Moreover, the motion that plaintiff filed against White Castle is baseless and the height of frivolousness. It has long been settled that "Courts have discretion to award costs or impose financial sanctions against a party or attorney in a civil action for engaging in frivolous conduct." US Bank Nat'l Ass'n v. Nunez, 208 AD3d 711, 713, 173 N.Y.S.3d 627, 630 (2d Dept. 2022) (proper to grant motion "pursuant to 22 NYCRR 130—1.1(a) to recover costs for the making of the cross motion, to be paid by the defendant's attorney."). "Conduct is frivolous under 22 NYCRR 130—1.1 if it is 'completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law' or it is 'undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another.'" Falco v. Miller, 170 AD3d 661, 662—63, 96 N.Y.S.3d 73, 75 (2d Dept. 2019) (awarding over $17,000 as reimbursement for counsel fees). See also Matter of Diontae B.P., 215 AD3d 681, 683, 186 N.Y.S.3d 357, 359 (2d Dept. 2023) ("the Supreme Court providently exercised its discretion in awarding costs in the form of reasonable attorney's fees"); Consumer Prot. Restoration, LLC v. Hickory House Tenants Corp., 236 AD3d 742, 744, 229 N.Y.S.3d 498, 501 (2d Dept. 2025) (where plaintiffs' unreasonable delay generated "unnecessary motion practice," "the award of legal fees in the sum of $6,699 . . . against the plaintiffs pursuant to 22 NYCRR 130—1.1 was a provident exercise of the Supreme Court's discretion.").

The Court determines that plaintiff's counsel's refusal to dismiss White Castle from the action was undertaken primarily to harass or maliciously injure White Castle. The City admitted, on the Record, that White Castle did not own the property where the accident occurred; White Castle produced an affirmation, as directed on the Record (and agreed by plaintiff's counsel) that made clear that White Castle had never maintained, or hired someone to maintain, the sidewalk in front of 267 South Broadway; and White Castle produced an expert's report demonstrating that White Castle did not own the premises where the accident occurred. Yet despite all of this, plaintiff's counsel insisted that it wanted the utterly irrelevant maintenance records for 257 South Broadway — and, then, after White Castle had filed this motion, had the audacity to file an entirely frivolous cross-motion for sanctions. This was unjustifiable, harassing, malicious and sanctionable. Accordingly, the Court grants White Castle's motion, except declines to impose sanctions at this time. The Court warns counsel for plaintiff that it will not hesitate to impose sanctions should it continue to take baseless positions. The Court denies the cross-motion in its entirety.

With respect to the motion regarding the City, the Notice to Admit asked for two admissions: "That on October 19, 2024, Defendant, CITY OF YONKERS., [sic] was the owner of the premises located at 257 S. Broadway, Yonkers, New York. 2. . [sic] That on October 19, 2024, Defendant, CITY OF YONKERS., [sic] was the owner of the premises located at 267 S. Broadway, Yonkers, New York." In response, the City objected, stating that the demands sought admissions regarding disputed facts that are not the proper subject of a Notice to Admit. The Court agrees. As the Second Department has explained, "the purpose of a notice to admit is only to eliminate from contention those matters which are not in dispute in the litigation and which [*4]may be readily disposed of. A notice to admit is not to be employed to obtain information in lieu of other disclosure devices, or to compel admissions of fundamental and material issues or contested ultimate facts." Am. Builders & Contractors Supply Co. v. Vinyl is Final, Inc., 222 AD3d 708, 202 N.Y.S.3d 353, 355 (2d Dept. 2023).

Plaintiff's Notice to Admit did exactly that, seek admissions about matters that are in dispute in the litigation. As such, plaintiff's motion must be denied in its entirety.

As discussed on the Record at the October 28th Court appearance, the City has been unable to locate records determining which entity, the City or the Yonkers Parking Authority, is responsible for the sidewalk in question. The City's counsel represented both on the Record and in response to plaintiff's motion that Yonkers Parking Authority is a separate entity from the City. He stated that it is a public authority created by the State of New York under the Public Authority Law. Counsel for the City represented on the Record that the Yonkers Parking Authority has "their own counsel, their own insurance carrier." The Court, at the appearance on October 28th, directed plaintiff to sue the Yonkers Parking Authority that day, "right away," "immediately," serving the summons by personal service. The Court scheduled the next appearance for December 9, 2025, stating that "Everybody should be brought in, there should be an answer, we should have everything going by then." Despite this very clear directive, plaintiff still has not brought in the Yonkers Parking Authority. This is a problem.

The Court is dismayed by the tenor of this litigation, and directs the remaining parties to review the Standards of Civility, Appendix A to the Rules of Professional Conduct, before the next appearance on December 9, 2025.

The foregoing constitutes the decision and order of the Court.