Opinion
7363- 7364- 7365- 7366- 7367- 7368 Index 651010/11
10-18-2018
ANDERSON & ANDERSON LLP–GUANGZHOU, et al., Plaintiffs–Appellants–Respondents, v. NORTH AMERICAN FOREIGN TRADING CORP., Defendant–Respondent–Appellant. Anderson & Anderson LLP–Guangzhou, et al., Plaintiffs–Respondents, v. North American Foreign Trading Corp., Defendant–Appellant.
Cox, Padmore Skolnik & Snakarcny, LLP, New York (Stefan Kalina, New York, of counsel), for appellants-respondents/respondents. Schlam Stone & Dolan LLP, New York (Niall D. O'Murchadha, New York, of counsel), for respondent-appellant/appellant.
Cox, Padmore Skolnik & Snakarcny, LLP, New York (Stefan Kalina, New York, of counsel), for appellants-respondents/respondents.
Schlam Stone & Dolan LLP, New York (Niall D. O'Murchadha, New York, of counsel), for respondent-appellant/appellant.
Sweeny, J.P., Gische, Mazzarelli, Webber, Kahn, JJ.
Judgment, Supreme Court, New York County (Eileen Bransten, J.), entered November 29, 2017, dismissing the complaint without prejudice, unanimously affirmed, without costs. Appeals from orders, same court and Justice, entered on or about November 2, 2016 and June 6, 2017, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. Appeals from orders entered on or about February 27, 2017, and September 25, 2017, unanimously dismissed, without costs.
The motion court properly granted defendant's motion to strike the complaint after plaintiffs failed to comply with a conditional order striking the complaint unless they produced the written discovery and witnesses for depositions within a specified period (see Casas v. Consolidated Edison Co. of N.Y., Inc., 116 A.D.3d 648, 987 N.Y.S.2d 15 [1st Dept. 2014] ; see also Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 82–83, 917 N.Y.S.2d 68, 942 N.E.2d 277 [2010] ).
Plaintiffs failed to demonstrate that they were entitled to relief from the conditional order. Their proffered excuses for their noncompliance—including their claimed difficulties in locating suitable counsel—are not reasonable (see Gibbs, 16 N.Y.3d at 80, 917 N.Y.S.2d 68, 942 N.E.2d 277 ). Plaintiffs had plenty of time and opportunities to obtain new counsel but failed to do so (see 135 Bowery LLC v. 10717 LLC, 145 A.D.3d 1225, 1227–1228, 43 N.Y.S.3d 207 [3d Dept. 2016] ; Abbott v. Crown Mill Restoration Dev., LLC, 109 A.D.3d 1097, 1099, 972 N.Y.S.2d 117 [4th Dept. 2013] ). Plaintiffs moved for an appellate stay of discovery (which was ultimately denied) and requested that the court permit depositions to be conducted via written questions. However, they were not free simply to do nothing while awaiting rulings on those motions. As they did not submit an affidavit of merit by someone with personal knowledge of the evidentiary facts, plaintiffs also failed to demonstrate that they had a meritorious claim (see Gibbs, 16 N.Y.3d at 80, 917 N.Y.S.2d 68, 942 N.E.2d 277 ; Oversby v. Linde Div. of Union Carbide Corp., 121 A.D.2d 373, 503 N.Y.S.2d 85 [2d Dept. 1986] ).
Plaintiffs failed to demonstrate that the conditional order was improperly entered. It is undisputed that plaintiffs failed to comply with the court's October 19 and December 13, 2016 status conference orders or to respond substantively to defendant's request to meet and confer (see CPLR 3126[3] ; Gibbs, 16 N.Y.3d at 79, 917 N.Y.S.2d 68, 942 N.E.2d 277 ; Henderson–Jones v. City of New York, 87 A.D.3d 498, 504, 928 N.Y.S.2d 536 [1st Dept. 2011] ). As indicated, plaintiffs' noncompliance is not excused by their purported difficulties in obtaining adequate counsel.
The fact that plaintiffs timely produced documents responsive to defendant's earlier requests in 2012–2013 does not excuse their failure to comply with defendant's later requests or the court's later discovery orders. The fact that plaintiffs disagreed with those orders is also not a reasonable excuse for noncompliance (see Seril v. Belnord Tenants Assn., 139 A.D.2d 401, 401, 526 N.Y.S.2d 462 [1st Dept. 1988], citing Margulies v. Margulies, 42 A.D.2d 517, 517, 344 N.Y.S.2d 482 [1st Dept. 1973], lv dismissed 33 N.Y.2d 894, 352 N.Y.S.2d 447, 307 N.E.2d 562 [1973] ). Defendant's own alleged wrongful withholding of documents demanded in 2012 until 2016 is similarly not relevant, as plaintiffs resolved these grievances by stipulation and took the position that no further discovery was necessary.
Nevertheless, we find that the motion court properly declined to hold plaintiffs in civil contempt (see El–Dehdan v. El–Dehdan, 114 A.D.3d 4, 10, 16, 978 N.Y.S.2d 239 [2d Dept. 2013], affd 26 N.Y.3d 19, 19 N.Y.S.3d 475, 41 N.E.3d 340 [2015] ) or to award monetary sanctions against their counsel, Courtney Delano West (see Rules of Chief Admin of Cts [ 22 NYCRR] § 130–1.1 [a], [c]; Levy v. Carol Mgt. Corp., 260 A.D.2d 27, 34–35, 698 N.Y.S.2d 226 [1st Dept. 1999] ).
Additionally, we cannot conclude that the motion court erred as a matter of law in dismissing the complaint without prejudice (see CPLR 5013 ; Maitland v. Trojan Elec. & Mach. Co., 65 N.Y.2d 614, 615–616, 491 N.Y.S.2d 147, 480 N.E.2d 736 [1985] ; Daluise v. Sottile, 40 A.D.3d 801, 802–803, 837 N.Y.S.2d 175 [2d Dept. 2007] ).
The February 2017 order, which denied plaintiffs' motion to vacate an October 2014 order that disqualified counsel for plaintiffs, and the September 2017 order, which denied plaintiffs' motion for leave for West to appear as counsel, are not brought up for review by the instant appeal from the judgment, because they do not "necessarily affect[ ] the final judgment" (see CPLR 5501[a][1] ; Paul v. Cooper, 100 A.D.3d 1550, 1552, 954 N.Y.S.2d 799 [4th Dept. 2012], lv denied 21 N.Y.3d 855, 2013 WL 1876585 [2013] ). However, the November 2016 order, which granted defendant's motion to vacate the note of issue and denied plaintiffs' motion for summary judgment, is reviewable, because, if reversed, it could be dispositive (see CPLR 5501[a][1] ; Siegmund Strauss, Inc. v. East 149th Realty Corp., 20 N.Y.3d 37, 41–43, 956 N.Y.S.2d 435, 980 N.E.2d 483 [2012] ).
The court correctly vacated the note of issue on the ground that there was significant fact and expert discovery outstanding at the time it was filed (see Uniform Rules for Trial Cts [ 22 NYCRR] § 202.21 [a]-[b]; Tirado v. Miller, 75 A.D.3d 153, 156, 901 N.Y.S.2d 358 [2d Dept. 2010] ; Vargas v. Villa Josefa Realty Corp., 28 A.D.3d 389, 390–391, 815 N.Y.S.2d 30 [1st Dept. 2006] ). Plaintiffs' claim that defendant's deposition notices were fabricated is unpersuasive.
The court correctly denied plaintiffs' motion for summary judgment both as premature (see CPLR 3212[f] ) and because issues of fact existed as to what was required by the contingency fee agreements to trigger defendant's payment obligation, whether plaintiffs met those requirements, whether the agreements automatically terminated on December 31, 2009, and whether plaintiffs were entitled to payment even if the agreements terminated on that date. Further discovery could prove illuminating on these issues—particularly expert discovery on the correct interpretation of these agreements under Chinese law (see JPMorgan Chase Bank, N.A. v. Motorola, Inc., 47 A.D.3d 293, 305, 846 N.Y.S.2d 171 [1st Dept. 2007] ). Although both parties produced expert affidavits despite the absence of any expert discovery, plaintiffs did not submit their affidavit until reply, and therefore cannot rely on it to make their prima facie showing (see L'Aquila Realty, LLC v. Jalyng Food Corp., 103 A.D.3d 692, 959 N.Y.S.2d 724 [2d Dept. 2013] ).
We have considered plaintiffs' remaining arguments and find them unavailing.