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Devlinhair Prods., Inc. v. Pinder
Devlinhair Prods., Inc. v Pinder 2026 NY Slip Op 30906(U) March 12, 2026 Supreme Court, New York County Docket Number: Index No. 652098/2020 Judge: Emily Morales-Minerva Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.6520982020.NEW_YORK.002.LBLX000_TO.html[03/19/2026 3:45:57 PM]
FILED: NEW YORK COUNTY CLERK 03/13/2026 12:57 PM INDEX NO. 652098/2020 NYSCEF DOC. NO. 301 RECEIVED NYSCEF: 03/13/2026
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 42M X DEVLINHAIR PRODUCTIONS, INC. INDEX NO. 652098/2020
Plaintiff, MOTION DATE 03/05/2026 -v- MOTION SEQ. NO. 006 KATHARYN PINDER,
Defendant. DECISION+ ORDER ON MOTION IN LIMINE X
The following e-filed documents, listed by NYSCEF document number (Motion 006) 280, 281, 282, 283, 284,285,286,287,291,292,293,294,295,296 were read on this motion to/for PRECLUDE
APPEARANCES:
Guzov LLC, New York, NY (Anne W. Salisbury, Esq. , of counsel) , for plaintiff.
Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo, P.C., New York, NY (John Corbin Carter, Esq. of counsel), for defendant.
HON. EMILY MORALES-MINERVA, J.S.C.
At the pre-trial conference, held on November 24, 2025,
plaintiff disclosed its intention to call seven to ten
witnesses, and defendant disclosed her intention to call two to
four witnesses. However, neither party identified those
witnesses, and during oral arguments on a pending motion in
limine on February 26, 2026, the Court ordered "the parties [to]
disclose their witness lists to each other and to the Court by
[] February 26, 2026 at 5:00 P.M." (see New York State Court 652098/2020 DEVLIN HAIR PRODUCTIONS, INC. vs. PINDER, KATHARYN Page 1 of 4 Motion No. 006
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FILED: NEW YORK COUNTY CLERK 03/13/2026 12:57 PM INDEX NO. 652098/2020 NYSCEF DOC. NO. 301 RECEIVED NYSCEF: 03/13/2026
Electronic Filing System [NYSCEF] Doc. No. 279, order - non-
motion, dated February 26, 2026). The parties exchanged witness
lists in accordance with this directive, and, therein, plaintiff
noted its intention to call two unnamed, previously undisclosed
witnesses, identified only as "a witness from Novartis
Pharmaceutical Corporation" and "a witness from AMGEN" (see
NYSCEF Doc. No. 278, witness list}. Now, defendant seeks to
preclude these two unnamed witnesses from testifying at trial,
which is scheduled to commence on March 16, 2026.
The CPLR directs that there shall be "full disclosure of
all evidence material and necessary in the prosecution or
defense of an action" (CPLR 3101 [a]}. Compliance with said
disclosure obligations is aimed at preventing gamesmanship,
prejudice, and unfair surprise at trial (see Eros International
PLC v Mangrove Partners, 191 AD3d 464 [1st Dept 2021]; see also
Monzac v 1141 Elder Towers LLC, 180 AD3d 547 [1st Dept 2020];
Hunter v Tryzbinski, 278 AD3d 844 [4th Dept 2000]}.
Upon consideration of the arguments and applicable law, the
Court exercises its discretion to grant defendant's request to
preclude plaintiff's two unnamed witnesses from testifying at
trial. Although this action has been pending for approximately
six years, plaintiff has failed to identify either witness by
name, title, or the like (see NYSCEF Doc. No. 278, witness list,
652098/2020 DEVLIN HAIR PRODUCTIONS, INC. vs. PINDER, KATHARYN Page 2 of 4 Motion No. 006
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FILED: NEW YORK COUNTY CLERK 03/13/2026 12:57 PM INDEX NO. 652098/2020 NYSCEF DOC. NO. 301 RECEIVED NYSCEF: 03/13/2026
and Doc. No. 296, plaintiff's affirmation in opposition to
motion to preclude).
Indeed, plaintiff acknowledges -- despite trial being
scheduled to commence on Monday, March 16, 2026 -- that it has
yet to determine the identities of these witnesses or issue
trial subpoenas (see id. at p 3 ["these trial subpoenas have not
yet been issued, as (plaintiff) has been attempting to identify
proper witnesses]). Nor does plaintiff offer any explanation as
to why, on the eve of trial, the identities of these witnesses
remain unknown, or document any efforts undertaken during the
course of this six-year litigation to identify them1 (see
Gerasimowicz v Delis, 231 AD3d 536 [1st Dept 2024] [preclusion
of plaintiff's trial witness upheld where, in addition to a lack
of diligence, "plaintiff did not provide a reasonable
explanation for his failure to disclose [the] witnesses earlier
in this 10-year-old litigation"].
In view of plaintiff's failure to exercise due diligence in
procuring and identifying the two witnesses to testify at trial,
and the resulting prejudice to defendant on the eve of trial,
preclusion of those witnesses is warranted (see Rosa v New York
City Transit Authority, 55 AD3d 344, 345 [1st Dept 2008]
FILED: NEW YORK COUNTY CLERK 03/13/2026 12:57 PM INDEX NO. 652098/2020 NYSCEF DOC. NO. 301 RECEIVED NYSCEF: 03/13/2026
Footnotes
[1] Plaintiff simply notes that "[a]s the non-party [witnesses] are, naturally, not under [plaintiff's] control, [plaintiff] is not in a position to identify the specific individual(s) by name" (NYSCEF Doc. No. 296, affirmation in opposition, p 4). 652098/2020 DEVLINHAIR PRODUCTIONS, INC. vs. PINDER, KATHARYN Page 3 of 4 Motion No. 006 [* 3] 3 of 4 [holding that "in view of the [defendant's] failure to act diligently to procure its proposed witnesses [] the trial court's preclusion of the [defendant] from calling such witnesses did not rise to the level of an abuse of discretion"]; see also Mayorga v Jocarl & Ron Co., 41 AD3d 132, 134 [1st Dept 2007] [preclusion of plaintiff's trial witness upheld due to plaintiff's lack of due diligence]). Accordingly, it is hereby ORDERED that defendant's motion (seq. no. 06) is granted entirely; and it is further ORDERED that the Clerk of Court shall mark the file accordingly. 3/12/2026 § DATE CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE 652098/2020 DEVLINHAIR PRODUCTIONS, INC. vs. PINDER, KATHARYN Page4of4 Motion No. 006
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