Conditional Order 3126

McIntosh v New York City Partnership Dev. Fund Co., Inc., 2018 NY Slip Op 07303 [2d Dept. 2018]

Contrary to the plaintiffs’ contention, under the language of the conditional order of preclusion, the plaintiffs’ failure to respond to outstanding discovery demands from even a single other party would result in the plaintiffs being precluded from presenting any evidence of damages at trial. The plaintiffs did not meet their burden to avoid the adverse effect of the conditional order of preclusion, as they did not “demonstrate a reasonable excuse for the failure to comply with the order and the existence of a potentially meritorious” cause of action (Naiman v Fair Trade Acquisition Corp., 152 AD3d at 780).

3126 [the records did not exist]

Tanriverdi v United Skates of Am., Inc., 2018 NY Slip Op 05885 [2nd Dept 2018]

As a result of the plaintiffs' failure to disclose salon appointment records dating back to February 2011, the conditional order became absolute (see Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830; Mars v Sharp, 90 AD3d 865, 865-866; Zouev v City of New York, 32 AD3d 850, 850). To be relieved of the adverse impact of the conditional order, the plaintiffs were required to demonstrate a reasonable excuse and a potentially meritorious cause of action (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 79-83; Corex-SPA v Janel Group of N.Y., Inc., 156 AD3d 599, 602; Zouev v City of New York, 32 AD3d at 850-851). Here, in response to the defendant's motion, the plaintiffs submitted evidence indicating that the conditional order of dismissal directed them to produce appointment records that did not exist, thereby demonstrating a reasonable excuse for their failure to produce the records in question (see Smith v County of Nassau, 138 AD3d 726, 728; Gottfried v Maizel, 68 AD3d 1060, 1061). The plaintiffs additionally demonstrated a potentially meritorious cause of action (see Miskanic v Roller Jam USA, Inc., 71 AD3d 1102, 1102-1103). Consequently, the Supreme Court improvidently exercised its discretion in granting the defendant's motion to dismiss the complaint.

Contrary to the defendant's contention, CPLR 3126 did not otherwise justify the Supreme Court's determination to dismiss the complaint. "Actions should be resolved on their merits whenever possible, and the drastic remedy of striking a pleading should not be employed without a clear showing that the failure to comply with court-ordered discovery was willful and contumacious" (Nunez v Laidlaw, 150 AD3d 1124, 1125; see Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 739). The defendant failed to make a clear showing that the plaintiffs' conduct was willful and contumacious, since, among other things, the plaintiffs complied with many discovery demands and substantially complied with the court's disclosure orders once the parties resumed discovery after failing to reach a settlement agreement. The plaintiffs' conduct did not warrant dismissal (see Nunez v Laidlaw, 150 AD3d at 1126; McDermott v Bahnatka, 83 AD3d 1014, 1015; LOP Dev., LLC v ZHL Group, Inc., 78 AD3d 1020, 1020).

3126

Chowdhury v Hudson Val. Limousine Serv., LLC, 2018 NY Slip Op 04526 [2d Dept 2018]

"The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court's discretion" (Crupi v Rashid, 157 AD3d 858, 859; see Dimoulas v Roca, 120 AD3d 1293, 1295; Arpino v F.J.F. & Sons Elec., Co., Inc., 102 AD3d 201, 210; Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 738). "The general rule is that the court will impose a sanction commensurate with the particular disobedience it is designed to punish and go no further than that" (Crupi v Rashid, 157 AD3d at 859; see Zakhidov v Boulevard Tenants Corp., 96 AD3d at 739; Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C3126:8). This Court is vested with corresponding power to substitute its own discretion for that of the motion court, even in the absence of abuse (see Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843, 845; Household Fin. Realty Corp. of NY v Cioppa, 153 AD3d 908, 910; Lewis v John, 87 AD3d 564, 565).

In light of Koonin's failure to comply with multiple court orders and so-ordered stipulations directing him to appear for the EBT, the Supreme Court properly concluded that Koonin engaged in willful and contumacious conduct (see Riccuiti v Consumer Prod. Servs., LLC, 71 AD3d 754Carabello v Luna, 49 AD3d 679, 680). However, under the circumstances, it was an improvident exercise of discretion to grant those branches of the motion and cross motion which were to strike Koonin's answer in light of the fact that the court also granted those branches of the motion and cross motion which were to preclude Koonin from offering any evidence at the time of trial (see e.g. Hasan v 18-24 Luquer St. Realty, LLC, 144 AD3d 631, 633; Piatek v Oak Dr. Enters., Inc., 129 AD3d 811, 812).

Cannon v 111 Fulton St. Condominium, Inc., 2018 NY Slip Op 04523 [2d Dept 2018]

Here, the so-ordered stipulation did not set a time, date, or place for the plaintiff's deposition, instead stating merely that the plaintiff's deposition was to be held "on or before" March 16, 2015, "at a time and location to be agreed upon." In light of this, the defendants' minimal assertion that the plaintiff failed to appear, which relied on the hearsay assertion of an unnamed employee of defense counsel, was insufficient to demonstrate that the plaintiff willfully and contumaciously violated the so-ordered stipulation (see Yong Soon Oh v Hua Jin, 124 AD3d 639, 641; Deer Park Assoc. v Town of Babylon, 121 AD3d at 740; Vaccaro v Weinstein, 117 AD3d 1033, 1034; Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923). Similarly, the defendants did not allege in [*3]their motion that the plaintiff had failed to provide the outstanding written discovery that was included in the so-ordered stipulation. Therefore, since the defendants failed to demonstrate that the plaintiff knew when and where to appear for her deposition, there was no evidence of ongoing willful or contumacious conduct (see PNC Bank, N.A. v Campbell, 142 AD3d 1148, 1149). Accordingly, we disagree with the Supreme Court's determination to grant that branch of the defendant's motion which was to preclude the plaintiff from offering evidence at trial.

Overbroad Discovery

Doe v Bronx Preparatory Charter Sch., 2018 NY Slip Op 02898 [1st Dept. 2018]

The court providently exercised its discretion in declining to impose sanctions on plaintiffs or to compel further disclosure of the infant plaintiff's social media and cell phone history, since defendant failed to submit papers necessary to determine whether plaintiffs had not complied with a prior discovery order (see Nyadzi v Ki Chul Lee, 129 AD3d 645 [1st Dept 2015]; Ventura v Ozone Park Holding Corp., 84 AD3d 516, 517—518 [1st Dept 2011]). Further, there was no showing that plaintiffs wilfully failed to comply with any discovery order, since they provided access to the infant plaintiff's social media accounts and cell phone records for a period of two months before the date on which she was allegedly attacked on defendant's premises to the present, which was a reasonable period of time. Defendant's demands for access to social media accounts for five years prior to the incident, and to cell phone records for two years prior to the incident, were overbroad and not reasonably tailored to obtain discovery relevant to the issues in the case (see Forman v Henkin, 30 NY3d 656, 665 [2018]).

Court is not a weedwhacker

Sears Roebuck & Co. v Vornado Realty Trust, 2018 NY Slip Op 01421 [1st Dept 2018]

Nothing in the record suggests that defendants acted willfully, contumaciously, or in bad faith, warranting the drastic remedy of striking the answer (see Henderson—Jones v City of New York, 87 AD3d 498, 504 [1st Dept 2011]). Indeed, defendants produced responsive documents to requests that were the subject of plaintiff's motion, as shown by their affirmation in support of the first cross motion, of which this Court takes judicial notice (see Yuppie Puppy Pet Prods., Inc. v Street Smart Realty, LLC, 77 AD3d 197, 202 [1st Dept 2010]). Plaintiff is not entitled to confidential information about the interrelationship and ownership of defendants. Moreover, defendants submitted responses to plaintiff's 86 interrogatories, and, as the majority of their responses to the interrogatories in dispute were proper, the court was not obligated to "prune" the interrogatories for plaintiff (see Lerner v 300 W. 17th St. Hous. Dev. Fund Corp., 232 AD2d 249, 250 [1st Dept 1996]).

A desperate attempt to avoid discovery [CPLR 3126, 3103]

Compare with Donohue v Fokas, 112 AD3d 665 [2d Dept 2014] (""[T]he payment or rejection of claims is a part of the regular business of an insurance company. Consequently, reports which aid it in the process of deciding which of the two indicated actions to pursue are made in the regular course of its business. Reports prepared by insurance investigators, adjusters, or attorneys before the decision is made to pay or reject a claim are thus not privileged and are discoverable, even when those reports are mixed/multi-purpose reports, motivated in part by the potential for litigation with the insured") and  National Union Fire Ins. Co. of Pittsburgh, Pa. v TransCanada Energy USA, Inc., 114 AD3d 595 [1st Dept. 2014] ("Documents prepared in the ordinary course of an insurer's investigation of whether to pay or deny a claim are not privileged, and do not become so merely because [the] investigation was conducted by an attorney") (internal quotes omitted).

Prior Appellate history: Ural v Encompass Ins. Co. of Am., 97 AD3d 562 [2d Dept 2012]

With respect to the parties' discovery issues, CPLR 3101 (a) broadly mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action." This provision is liberally interpreted in favor of disclosure (see Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954 [1998]; Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; Matter of Skolinsky, 70 AD3d 845 [2010]; Riverside Capital Advisors v First Secured Capital Corp., 292 AD2d 515 [2002]). However, the discovery sought must be relevant to the issues at bar, with the test employed being "usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d at 406). Regarding an entire set of discovery demands which are "palpably improper in that they are overbroad, lack specificity, or seek irrelevant or confidential information, the appropriate remedy is to vacate the entire demand rather than to prune it" (Bell v Cobble Hill Health Ctr., Inc., 22 AD3d 620, 621 [2005]). "The burden of serving a proper demand is upon counsel, and it is not for the courts to correct a palpably bad one" (id. at 621 [internal quotation marks omitted]).

Here, the plaintiff's discovery demands included production of Encompass's entire claim file for the subject water damage. The plaintiff asserts that Encompass only produced part of the claim file. In response, Encompass asserts that it withheld only those parts of the claim file that were produced in anticipation of litigation and thus were protected by work product privilege (see Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370 [2008]). However, the party asserting the privilege that material sought through discovery was prepared exclusively in anticipation of litigation or constitutes attorney work product bears the burden of demonstrating that the material it seeks to withhold is immune from discovery (see Koump v Smith, 25 NY2d 287, 294 [1969]) by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation (see Chakmakjian v NYRAC, Inc., 154 AD2d 644, 645 [1989]; Crazytown Furniture v Brooklyn Union Gas Co., 145 AD2d 402 [1988]). Here, Encompass's attorney's conclusory assertions were insufficient to satisfy this burden (see Bombard v Amica Mut. Ins. Co., 11 AD3d 647, 648 [2004]; see also Agovino v Taco Bell 5083, 225 AD2d 569 [1996]). Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was to compel Encompass to produce the documents contained in the plaintiff's claim file to the extent of directing Encompass to provide the Supreme Court with a detailed privilege log (see CPLR 3122; Clark v Clark, 93 AD3d 812 [2012]), and the matter must be remitted to the Supreme Court, Nassau County, for an in camera review of the allegedly privileged documents.

 

Ural v Encompass Ins. Co. of Am., 2018 NY Slip Op 01350 [2d Dept 2018]

The underlying facts of this case are summarized in the decision and order of this Court on a prior appeal in this action (see Ural v Encompass Ins. Co. of Am., 97 AD3d 562). On the prior appeal, this Court reinstated the plaintiff's causes of action to recover damages for unfair trade practices under General Business Law § 349 and for violation of Insurance Law § 2601, which prohibits unfair claim settlement practices. This Court determined that the defendants Encompass Insurance Company of America and Encompass Insurance Company (hereinafter together Encompass) were required to produce the documents contained in the plaintiff's claim file to the extent of directing Encompass to provide the Supreme Court with a "detailed privilege log" of documents claimed to be exempt from disclosure based upon a privilege or as work product for litigation (Ural v Encompass Ins. Co. of Am., 97 AD3d at 567). This Court further determined that the Supreme Court properly denied that branch of the plaintiff's motion which was to compel Encompass to comply with certain discovery demands because the demands were overbroad, lacked specificity, or sought irrelevant information, but declined to grant a protective order (see CPLR 3103).

After depositions of various witnesses, the plaintiff served Encompass with a third notice for discovery and inspection which made specific references to the deposition testimony in seeking, inter alia, various documents and other material. Encompass then moved for a protective order pursuant to CPLR 3103(a) with respect to the third notice for discovery and inspection, contending that the plaintiff was attempting to obtain, in numerous instances, information and documents that the Supreme Court and this Court had deemed to be palpably improper. The plaintiff cross-moved, inter alia, pursuant to CPLR 3126(3) to strike Encompass's verified answer and for leave to enter a default judgment against it for failure to comply with the plaintiff's outstanding discovery demands in the third notice for discovery and inspection and for failure to produce for in camera inspection the "detailed privilege log" which this Court, on the prior appeal, had directed Encompass to produce.

The Supreme Court denied Encompass's motion pursuant to CPLR 3103(a) for a protective order, and granted that branch of the plaintiff's cross motion which was pursuant to CPLR 3126(3) to strike Encompass's verified answer and for leave to enter a default judgment against it to the extent of conditionally striking certain portions of the verified answer and precluding Encompass from offering certain evidence at trial if Encompass failed to comply with the plaintiff's outstanding discovery demands from his third notice for discovery and inspection and produce the detailed privilege log for in camera inspection.

Pursuant to CPLR 3103(a), the Supreme Court may issue a protective order precluding disclosure that is palpably improper in that it seeks irrelevant and/or confidential information, or is overly broad and burdensome (see Greenman-Pedersen, Inc. v Zurich Am. Ins. Co., 54 AD3d 386, 387; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531). Contrary to Encompass's contention, the plaintiff's third notice for discovery and inspection was not palpably improper or overly broad and burdensome. Unlike the first two notices for discovery and inspection, the third notice for discovery and inspection provided specific references to deposition testimony, details, and time parameters, and sought information material and necessary to the pending causes of action (see Yoshida v Hsueh-Chih Chin, 111 AD3d 704). Accordingly, Encompass's motion pursuant to CPLR 3103(a) for a protective order against the plaintiff's third notice for discovery and inspection was properly denied.

Further, the Supreme Court properly granted that branch of the plaintiff's cross motion which was for relief pursuant to CPLR 3126(3) based upon Encompass's failure to comply with the prior order of this Court directing it to produce a detailed privilege log for in camera inspection (see Morales v Zherka, 140 AD3d 836Padovano v Teddy's Realty Assoc., Ltd., 31 AD3d 514, 515). Examination of the detailed privilege log in camera is necessary before a determination of whether certain items demanded in the third notice of discovery and inspection should in fact be disclosed. If such a log does not exist, then Encompass should so state to the Supreme Court as the reason for failing to produce it (see CPLR 3120[1][I]; Crawford v Burkey, 124 AD3d 1184Romeo v City of New York, 261 AD2d 379; Corriel v Volkswagen of Amer., 127 AD2d 729, 731). However, if such a log does not exist, Encompass cannot claim that the items demanded were privileged.

The Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's cross motion which was for relief pursuant to CPLR 3126(3) for failure to comply with the balance of the plaintiff's third notice for discovery and inspection, as there has been no clear showing that Encompass's lack of compliance with the third notice for discovery and inspection was willful and contumacious (see Dimoulas v Roca, 120 AD3d 1293Barnes v City of New York, 43 AD3d 1094Patel v DeLeon, 43 AD3d 432, 432-433). The items demanded in the third notice for discovery and inspection should be produced, and sanctions pursuant to CPLR 3126 should only be considered if Encompass continues to resist disclosure.

 

Considering that this firm usually takes a "rules are rules" position in Supreme Court, its position on appeal is hard to reconcile.

CPLR 3126

Crupi v Rashid, 2018 NY Slip Op 00406 [2d 2018]

The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court's discretion (see Dimoulas v Roca, 120 AD3d 1293, 1295; Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 739). The general rule is that the court will impose a sanction commensurate with the particular disobedience it is designed to punish and go no further than that (see Zakhidov v Boulevard Tenants Corp., 96 AD3d at 739; Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C3126:8). Before a court invokes the drastic remedy of striking a pleading, or even of precluding all evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious (see Zakhidov v Boulevard Tenants Corp., 96 AD3d at 739; Cianciolo v Trism Specialized Carriers, 274 AD2d 369, 370).

Here, on this record, there is no evidence demonstrating either that the incarcerated defendant, Syed Rashid, willfully and contumaciously failed to be deposed, or that his attorney failed to secure his deposition (see Brodsky v Amber Ct. Assisted Living, LLC, 147 AD3d 810Zakhidov v Boulevard Tenants Corp., 96 AD3d at 738; Patel v DeLeon, 43 AD3d 432, 432-433; Cianciolo v Trism Specialized Carriers, 274 AD2d at 370).

counsel were primarily engaged in claims handling [CPLR 3126]

CPLR 3126

National Union Fire Ins. Co. of Pittsburgh, Pennsylvania v TransCanada Energy USA, Inc., 19 AD3d 492 [1st Dept. 2014]

The record shows that the insurance companies retained counsel to provide a coverage opinion, i.e. an opinion as to whether the insurance companies should pay or deny the claims. Further, the record shows that counsel were primarily engaged in claims handling—an ordinary business activity for an insurance company. Documents prepared in the ordinary course of an insurer's investigation of whether to pay or deny a claim are not privileged, and do not become so " 'merely because [the] investigation was conducted by an attorney' " (see Brooklyn Union Gas Co. v American Home Assur. Co., 23 AD3d 190, 191 [1st Dept 2005]).

We need not reach the question of whether the common interest exception to the attorney client privilege applies, because the documents at issue are not privileged.

CPLR 3126 motion made at court appearance

CPLR 3126

Tung Wa Ma v New York City Tr. Auth., 2014 NY Slip Op 00497 [2nd Dept. 2014]

At a court appearance on October 10, 2012, the plaintiffs made an oral application pursuant to CPLR 3126 to preclude Lamboy from testifying at trial. The plaintiffs argued that, despite prior requests and orders, the MTA defendants had failed to provide the requested documents. The MTA defendants opposed the application, arguing, inter alia, that they had been unsuccessfully searching for the documents and that, if given the opportunity, they would provide affidavits attesting to the efforts they had made to find them. The Supreme Court granted the plaintiffs' application without giving the MTA defendants an opportunity to show the efforts they had made to find the requested documents.

Before a court may impose the drastic remedy of preclusion for disclosure violations, it must determine that the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious (see Aha Sales, Inc. v Creative Bath Prods., Inc., 110 AD3d 1020). Here, the court erred in granting the plaintiffs' application pursuant to CPLR 3126 to preclude Lamboy from testifying at trial without first affording the MTA defendants an opportunity to demonstrate their attempts to comply with the prior order (see Xand Corp. v Reliable Sys. Alternatives Corp., 35 AD3d 849, 850; cf. Mitskevitch v City of New York, 78 AD3d 1137, 1138; Kelleher v Mt. Kisco Med. Group, 264 AD2d 760, 761; Postel v New York Univ. Hosp., 262 AD2d 40, 42).

Bold is mine.

3001: Declaratory Judgment

CPLR § 3001 Declaratory Judgment

found an older post on it 

Big Four LLC v Bond St. Lofts Condominium, 2012 NY Slip Op 02421 1st Dept., 2012)

In August 2010, plaintiff moved for an order, pursuant to CPLR 3126(3), striking defendant's pleading, or, alternatively, to compel production of requested information under CPLR 3124.
By notice of cross motion, defendant moved for summary judgment dismissing the complaint, and for summary judgment on its counterclaim for legal fees. The court granted defendant's cross motion for summary judgment, dismissing the declaratory judgment claim on the ground that "no justiciable controversy has been presented." It dismissed the breach of contract claim on the ground that plaintiff asked for an "advisory opinion" from the board, and the board provided such opinion. The court also initially granted summary judgment to defendant on its counterclaim for legal fees, but later denied it when plaintiff moved for reargument. This appeal followed.

Supreme Court's dismissal of the first cause of action on the ground that a declaratory judgment would be merely "advisory" was an improvident exercise of its discretion. "[W]hen a party contemplates taking certain action a genuine dispute may arise before any breach or violation has occurred" (New York Pub. Interest Research Group v Carey, 42 NY2d 527, 530 [1977]). Defense counsel's November 23, 2009 letter and defendant's subsequent expression of its intent, constituted "past conduct" creating a genuine dispute for which a declaration would have had an "immediate and practical effect of influencing [the parties'] conduct" (id. at 531; see M & A Oasis v MTM Assoc., 307 AD2d 872 [2003]).

We, however, affirm the dismissal of the complaint's first cause of action for a declaratory judgment as to whether plaintiff may lease to nonparty 7-Eleven, on the ground that plaintiff conceded below that 7-Eleven is no longer interested in such a lease. Accordingly, the dispute is moot, and there is no longer a "justiciable controversy" within the meaning of CPLR 3001 (see Matter of Ideal Mut. Ins. Co., 174 AD2d 420 [1991]). Furthermore, there is no basis to find that the exception for cases where the issue presented "is likely to recur, typically evades review, and raises a substantial and novel question" is applicable (Zuckerman v Goldstein, 78 AD3d 412 [2010]) lv denied 17 NY3d 779 [2011]).

Similarly, the second cause of action – asserting a bad faith breach of contract by defendant – was properly dismissed. The defendant condominium established its prima facie entitlement to judgment as a matter of law by demonstrating that the actions it took by objecting to the proposed intended use of the commercial space by 7-Eleven were "taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes" (Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 537—538 [1990] [internal quotations omitted]). Aside from some conclusory, unsupported and self-serving conjecture, plaintiff has failed to raise any triable issues regarding defendant's alleged bad faith in objecting to 7-Eleven's use of the commercial space.

BLT Steak, LLC v 57th St. Dorchester, Inc.,2012 NY Slip Op 02159 (1st Dept., 2012)

Defendant's withdrawal of the notice to cure rendered moot that branch of plaintiff's motion for declaratory relief as to the validity of the notice to cure, as there was no longer any controversy with respect to the notice (see CPLR 3001). Plaintiff's request for injunctive relief was also rendered moot by the withdrawal of the notice, because there was no longer any threat that plaintiff's leasehold would be terminated as a result of its alleged breach of the lease (see Mannis v Jillandrea Realty Co., 94 AD2d 676, 677 [1983]).

Plaintiff is not entitled to summary judgment declaring that it did not breach the parties' lease; the conflicting expert affidavits have raised issues of fact with respect to the damage to the steel and slab underlying plaintiff's kitchen. Contrary to plaintiff's contention, defendant's withdrawal of the notice to cure does not constitute an "adjudication on the merits," as it is undisputed that defendant never filed an action based on the allegations in the notice in a court of any state or the United States (CPLR 3217[c]).

The court properly dismissed plaintiff's third cause of action, for breach of the implied covenant of good faith and fair dealing and/or breach of contract. The "American rule" precludes plaintiff from recovering its attorney's fees as damages in the event it prevails on its cause of action, and plaintiff has failed to show that any exception is applicable (see Gotham Partners, L.P. v High Riv. Ltd. Partnership, 76 AD3d 203, 204 [2010], lv denied 17 NY3d 713 [2011]). Moreover, plaintiff has failed to plead any damages other than attorney's fees (see Gordon v Dino De Laurentiis Corp., 141 AD2d 435, 436 [1988]).