Category: 22 NYCRR 202.7

22 NYCRR 202.7(a)(2)

22 NYCRR 202.7 Calendaring of motions; uniform notice of motion form; affirmation of good faith

Garcia v City of New York, 2011 NY Slip Op 00629 (App. Div., 1st 2011)

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered December 24, 2009, which granted plaintiff's motion pursuant to CPLR 3126 to strike the answers of defendants City of New York, 1515 Bruckner Blvd. LLC, Citywide Contractors LLC and Kaila Construction Corporation unless they appear for their respective examinations before trial within 60 days of service of a copy of the order, unanimously affirmed, without costs.

 

Defendants failed to comply with a preliminary conference order and two compliance conference orders issued over a period of 14 months to produce witnesses for examinations before trial. However, given counsel's failure to file an affirmation in compliance with 22 NYCRR 202.7(a)(2), it was a provident exercise of discretion to provide defendants with a final opportunity to produce witnesses for examinations before trial (see Reidel v Ryder TRS, Inc., 13 AD3d 170 [2004]).

The bold is mine.

Lack of good faith letter requires denial of cross-motion 22 NYCRR 202.7(c)

22 NYCRR 202.7 Calendaring of motions; uniform notice of motion form; affirmation of good faith

(c) The affirmation of the good faith effort
to resolve the issues raised by the motion shall indicate the time,
place and nature of the consultation and the issues discussed and any
resolutions, or shall indicate good cause why no such conferral with
counsel for opposing parties was held.

Natoli v Milazzo, 2009 NY Slip Op 06815 (App. Div., 2nd, 2009)

Further, the court should have denied the cross motion because the
affirmation of good faith submitted by the plaintiffs' counsel was
insufficient, as it did not refer to any communications between the
parties that would evince a diligent effort by the plaintiffs to
resolve the discovery dispute (see 22 NYCRR 202.7[c]; Amherst Synagogue v Schuele Paint Co., Inc., 30 AD3d 1055, 1056-1057; Cestaro v Chin, 20 AD3d 500, 501; see also Baez v Sugrue, 300 AD2d 519, 521).