Designer Stone Source, Inc. v Dograa

Supreme Court, Richmond County

Decided on March 3, 2026

Index No. 150977/2022

Ronald Castorina, Jr., J.

I. Statement Pursuant to CPLR 2219 [a]

Pursuant to CPLR 2219 [a], the Court has considered the following papers in connection with Plaintiff's motion in limine: the Notice of Motion in Limine dated February 12, 2026 (NY St Cts Filing [NYSCEF] Doc No. 48) ; the Affirmation in Support dated February 12, 2026 (NY St Cts Filing [NYSCEF] Doc No. 49) ; the Affirmation in Opposition dated February 24, 2026 (NY St Cts Filing [NYSCEF] Doc No. 50) ; and the Reply Affirmation dated March 2, 2026 (NY St Cts Filing [NYSCEF] Doc No. 51).

II. Procedural Background and Findings of Fact

Plaintiff moves pursuant to CPLR §3126 to preclude Hilary Doloh from testifying at trial and further seeks sanctions pursuant to 22 NYCRR §130-1.1.

On December 20, 2022, Plaintiff served its Combined Demands and Demand for Bill of Particulars upon Defendants. Among those demands was a request that Defendants state the name and address of every person who may be called as a witness.

On July 14, 2023, Defendants served responses to Plaintiff's discovery demands. In those responses, Defendants identified Jaswndar Dograa, Karamjit Dograa, Anurag Shukla, and Ajoy Nayak as witnesses, but did not identify Hilary Doloh. On August 5, 2025, a Certification Order was issued stating that preliminary proceedings were completed. Thereafter, on September 2, 2025, a Note of Issue was filed.

On October 17, 2025, this Court denied Plaintiff's motion for summary judgment and granted Plaintiff's motion to dismiss Defendants' counterclaims, and directed that Plaintiff's first, second, and fourth causes of action proceed to trial. At a pre-trial conference held on October 20, 2025, the Court confirmed that discovery was closed, and the matter would proceed to trial.

The record further reflects that on December 31, 2025, Defendants served interrogatories upon Plaintiff, which Plaintiff rejected by Notice of Rejection dated January 5, 2026, on the ground that they were served months after the close of discovery and without court authorization. On January 12, 2026, the parties appeared for trial; however, the trial did not proceed due to a health issue affecting Plaintiff's principal, and the matter was adjourned to March 16, 2026.

On February 5, 2026, Defendant Jaswndar Dograa filed a Disclosure of Witnesses stating that he intended to call as witnesses Jaswndar Dograa, Karamjit Dograa, and Hilary Doloh. (NY St Cts Filing [NYSCEF] Doc No. 47). This was the first time Hilary Doloh was identified as a proposed trial witness.

Plaintiff promptly objected and thereafter filed the instant motion seeking preclusion. Defendants oppose the motion, arguing that supplementation is permitted pursuant to CPLR § 3101 [h], that disclosure was made promptly upon confirmation of relevance, and that preclusion is a drastic remedy. Defendants rely upon Allen v. Crowell-Collier Publishing Co., (21 NY2d 403 [1968]); Cutsogeorge v The Hertz Corporation, (264 AD2d 752 [2d Dept 1999]) and Edwards v Freedom Church of Revelation, (230 AD3d 740 [2d Dept 2024]). Plaintiff replies that once a Note of Issue is filed, discovery may only be reopened upon leave of court and upon a showing of unusual or unanticipated circumstances pursuant to 22 NYCRR § 202.21 [d], and that no such leave was sought.

III. Conclusions of Law

CPLR § 3101 [a] mandates full disclosure of all material necessary to the prosecution or defense of an action. As the Court of Appeals held in Allen v. Crowell-Collier Publishing Co., (21 NY2d 403 [1968]), the standard is to be liberally construed, the test being one of usefulness and reason. CPLR § 3101 [h] imposes a continuing obligation to supplement disclosure responses when they become incomplete or inaccurate.

However, once a Note of Issue is filed, 22 NYCRR § 202.21 [d] provides that discovery may be reopened only upon leave of court and upon a showing of unusual or unanticipated circumstances. The filing of the Note of Issue represents that the case is trial-ready.

Here, discovery was certified complete on August 5, 2025 (NY St Cts Filing [NYSCEF] [*2]Doc No. 24), and the Note of Issue was filed on September 2, 2025 (NY St Cts Filing [NYSCEF] Doc No. 25). Hilary Doloh was not identified in Defendants' July 14, 2023 discovery responses. The first disclosure occurred on February 5, 2026, more than five months after certification and after the matter had been calendared for trial.

Defendants did not move to vacate the Note of Issue and did not seek leave of court to reopen discovery. While supplementation is generally permitted, it cannot be invoked in a manner that circumvents the certification of readiness for trial. The authorities cited by Defendants are distinguishable on this record. In Edwards v. Freedom Church of Revelation, (230 AD3d 740 [2d Dept 2024]), the late submission occurred prior to the filing of the Note of Issue. In Cutsogeorge v. The Hertz Corporation, (264 AD2d 752 [2d Dept 1999]), the Appellate Division addressed expert medical testimony. Hilary Doloh is not proffered as an expert witness.

Permitting the testimony would necessitate additional proceedings after certification and would undermine the orderly administration of the Court's trial calendar. Under these circumstances, the disclosure of a new material witness on the eve of trial, without leave of court and without any showing of unusual or unanticipated circumstances, warrants preclusion.

With respect to sanctions pursuant to 22 NYCRR § 130-1.1, the Court does not find the record sufficient to establish willful or contumacious conduct warranting monetary sanctions. That branch of the motion is therefore DENIED.

IV. Conclusion and Decretal Paragraphs

Accordingly, it is hereby

ORDERED that Plaintiff's motion in limine is GRANTED TO THE EXTENT that Hilary Doloh is precluded from testifying at trial; and it is further

ORDERED that Plaintiff's request for sanctions pursuant to 22 NYCRR §130-1.1 is DENIED; and it is further

ORDERED that the parties shall proceed to trial on March 16, 2026, as previously scheduled.

This constitutes the Decision and Order of the Court.

Dated: March 3, 2026

Staten Island, New York

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT