Pre-Preliminary Conference Discovery Motion Denied in Age/Disability Discrimination Case

In Mascaro v. Brant Publications, Inc., No. 152662/2019, 2020 WL 5229247 (N.Y. Sup Ct, New York County Aug. 28, 2020) – in which plaintiff asserts claims for age and disability discrimination under the New York State Human Rights Law – the court denied plaintiff’s motion (pursuant to CPLR 3124 and 3126) to compel responses to discovery demands or, alternatively, sanctions (including striking defendants’ answer or precluding them from offering evidence at trial).

The court denied the motion, noting that it was made before a Preliminary Conference has been held. Specifically, Section 202.8(f) of the Uniform Civil Rules for the Supreme Court and the County Court provides:

Where [a] motion relates to disclosure or to a bill of particulars, and a preliminary conference has not been held, the court shall notify all parties of a scheduled date to appear for a preliminary conference, which shall be not more than 45 days from the return date of the motion unless the court orders otherwise, and a form of a stipulation and order, prescribed by the Chief Administrator of the Courts, shall be made available which the parties may sign, agreeing to a timetable which shall provide for completion of disclosure within 12 months, and for a resolution of any other issues raised by the motion. If all parties sign the form and return it to the court before the return date of the motion, such form shall be “so ordered” by the court, and the motion shall be deemed withdrawn. If such stipulation is not returned by all parties, the conference shall be held on the assigned date. Issues raised by the motion and not resolved at the conference shall be determined by the court”

Based on this, the court concluded that “[i]nasmuch as a preliminary conference has not been held, the court must deny the plaintiff’s motion and schedule a preliminary conference on a date not more than 45 days after the August 13, 2020 return date of this motion.”

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