FILED: NEW YORK COUNTY CLERK 03/02/ :18 AM INDEX NO /2012 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 03/02/2015

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1 FILED: NEW YORK COUNTY CLERK 03/02/ :18 AM INDEX NO /2012 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 03/02/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Sanjeev Bahlani, Plaintiff, Index No / against - Affirmation in Support Museum of Modern Art, Defendants Aaron N. Solomon, an attorney duly admitted to practice before the Courts of the State of New York, affirms under penalty of perjury as follows: 1. I am associated with the attorney for the plaintiffs and I have personal knowledge of the facts set forth herein. I submit this affirmation in support of plaintiffs motion for an order (a) striking defendant's answer due to its failure to comply with the August 26, 2014 and November 25, 2014 Compliance Conference Orders; or in the alternative (b) determining, pursuant to CPLR 3126 that defendants time and attendance records would show that other security guards were late and were not disciplined in the same manner as plaintiff; and (c) granting to plaintiff such further and additional relief as the Court deems just and proper. A. Factual Summary 2. This is an action for unlawful discrimination and retaliation brought under Title 8 of the New York City Administrative Code (New York City Human Rights Law); and the New York Executive Law. 3. This action arises from a series of incidents which occurred during 2011 while 1

2 plaintiff was employed by defendant, Museum of Modern Art (MOMA) as a security guard. During plaintiff's employment, he was diagnosed with a compressed bladder, and as a result, was required to be permitted to have additional breaks in order to use the restroom. See Exhibit A, Plaintiff's Verified Complaint. 4. Plaintiff's manager, Louis Bedard (who is African American) harassed plaintiff and refused to accommodate plaintiff's condition. For example, on one occasion, Bedard kept plaintiff waiting at his post for more than 25 minutes before sending another guard to relieve plaintiff. 5. On September 18, 2011, MOMA suspended plaintiff for allegedly violating its time and attendance policy due to lateness. Plaintiff had reasonable documented excuses for several instances of lateness. Bedard refused to retract plaintiff's latenesses. However, Bedard regularly accepted similar excuses from other security guards who were African American. Unlike plaintiff, their latenesses were excused, and they suffered no negative consequences. 6. Subsequently, plaintiff complained to his union about Bedard's treatment and the disparate application of defendant's time and attendance policy. 7. On December 14, 2011, MOMA terminated plaintiff's employment on the grounds that plaintiff was excessively late to work. 8. In order to succeed on his claim for discrimination under the City Law, plaintiff must prove that he was treated differently on the basis of his disability, race, or ethnicity. Since defendant contends that plaintiff was terminated for violating its time and attendance policy, discovery of how the same policy was applied to others is critical to proving plaintiff's case. 9. On August 26, 2014 the Court ordered defendant to produce all records 2

3 concerning the time and attendance, including discipline, for any security officer who was late the requisite number of times to trigger termination. Defendant was required to produce records for the three years prior to termination of plaintiff. A copy of the Court's August 26, 2014 Compliance Conference Order is annexed hereto as Exhibit B Defendant provided some records in response to the August 26, 2014 Court Order. However defendant did not provided any time and attendance records or work schedules for the employees who were late the requisite number of times to warrant termination. 11. At November 25, 2014 Compliance Conference, I raised defendant's failure to comply with the August 26, 2014 Order. I pointed out that defendant maintains a sophisticated computer system which tracks the scheduling and time and attendance of security guards at the museum. See Relevant Discovery Responses annexed hereto as Exhibit D. I explained that there was no reason why defendant could not quickly and easily print out time records and schedules for the requite employees. The Court Ordered defendant to fully comply with the August 26, 2015 order and directed defendant to produce time records and work schedules for all security guards who were late the requisite number of times to be subject to termination within three years prior to plaintiff's termination. A copy of the Court's November 25, 2014 Order is annexed hereto as Exhibit E. Defendant has never complied with the Court's Order. 12. Prior to making this motion, plaintiff tried to resolve this issue in good faith on 1 Stated differently, the Court ordered defendants to produce all records responsive to document request 1 of plaintiff's second set of document requests with the exception of personal days and vacation days. A copy of Plaintiff's second set of document requests is annexed as Exhibit C. 3

4 more than one occasion. On January 5, 2015, over a month after the November 26, 2015 compliance conference, plaintiff sent a letter to defense counsel reminding defendant of its obligation to comply with the Court's Order. A copy of the January 5, 2015 letter is annexed hereto as Exhibit F. On February 17, 2015, we sent a second letter to defendant. A copy of the February 17, 2015 letter is annexed hereto as Exhibit G. The very next day, defense counsel sent an stating that, as far as defendant was concerned, it produced all the material it believed was material and necessary. A copy of the February 18, chain is annexed hereto as Exhibit H. Counsel's makes it abundantly clear that defendant refuses to comply with the Court's Orders and will not produce any new material. A. Defendant's Answer Should be Stricken 13. Generally, the nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who refuses to comply with court-ordered discovery is a matter within the discretion of the court. A determination to impose sanctions for conduct which frustrates the disclosure scheme of the CPLR should not be disturbed absent an improvident exercise of discretion... Although actions should be resolved on the merits whenever possible, where the conduct of the resisting party is shown to be willful and contumacious, the striking of a pleading is warranted... Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply. Savin v. Brooklyn Mar. Park Dev. Corp., 61 AD3d 954 (2d Dep't. 2009) (internal quotation marks and citations omitted). In Kihl v. Pfeffer, 94 N.Y.2d 118 (1999), the Court of Appeals noted the following: If the credibility of court orders and the integrity of our judicial 4

5 system are to be maintained, a litigant cannot ignore court orders with impunity. Indeed, the Legislature, recognizing the need for courts to be able to command compliance with their disclosure directives, has specifically provided that a court may make such orders * * * as are just, including dismissal of an action (CPLR 3126). Finally, we underscore that compliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests meaningfully. Id. at The Appellate Division has upheld the dismissal of defendants answers when the record is replete with examples of defendants pattern of willful and contumacious behavior. Vega v. 265 W. 37 St. Corp., 223 A.D. 2d 385, 636 N.Y.S. 2d 296 (1 st Dept. 1996); Southampton v. Salten, 186 A.D.2d 796, 589 N.Y.S. 2d 355 (2 nd Dept. 1992). 15. The ongoing dispute regarding defendant's failure to provide time and attendance records is nothing new. It has been the subject of at least two court conferences and Orders in this case. And, despite two Orders compelling the production of these materials, defendant refuses to do so. There is no bonafide excuse for defendant's failure to comply with the Court's orders. If anything, counsel's in which she explains that defendant has produced all the material that it believes is material and necessary, shows that defendant's failure to provide discovery is willful. There is no question that the discovery is material and necessary because the Court ruled that it was on two separate occasions. 16. Yet, none of this matters to defendant. Simply put, defendant demonstrated that it believes it only has to produce what it chooses to produce, regardless of what the Court or anyone else says. This kind of noncompliance cannot be tolerated, and defendant's answer should be stricken. 5

6 B. Alternatively, the Court Should Determine that Defendant's Time and Attendance Records Would Show That Other Security Guards Were Late and Were not Disciplined in the Same Manner as Plaintiff 17. In the alternative, should the Court refrain from striking defendant's answer, CPLR 3126 permits the Court to issue an Order that issues to which the [withheld information is relevant shall be deemed resolved for the purposes of the action in accordance with the claims of the party obtaining the order. See CPLR 3126(1). The court has "broad discretion in determining the nature and degree of the penalty to be imposed where a party has refused to comply with discovery demands." See Incorporated Vil. of Cove Neck v. Petrara, 47 A.D.3d 885 (2 nd Dep't 2008). 18. If the Court is not inclined to strike defendant's answer, plaintiff submits that the Court should issue an order determining that the Defendant's time and attendance records would show that other security guards were late and were not disciplined in the same manner as plaintiff. This penalty is appropriate because it will simultaneously allow defendant to avoid a default while curing the harm posed to plaintiff by defendant's failure to comply with this Court's Orders. WHEREFORE it is respectfully requested that this Court grant this motion in all respects and award such other and further relief that is just and proper. Dated: New York, New York March 2, 2015 LAW OFFICE OF MICHAEL G. O NEILL By: Aaron N. Solomon 30 Vesey Street, Third Floor New York, New York (212) Attorneys for Plaintiff 6