Opinion
Index No. 703126/2019 Motion Seq. No. 6
12-30-2022
ROBIN ANGOTTI, Plaintiffs, v. PETRO HOME SERVICES, PETRO INC, and PETROLEUM HEAT and POWER COMPANY, Defendants,
Unpublished Opinion
Motion Date: September 13, 2022.
PRESENT: Hon. Timothy J. Dufficy Justice
SHORT FORM ORDER
HON. TIMOTHY J. DUFFICY, J.S.C.
The following papers were read on this motion by Plaintiff for an order, pursuant to CPLR § 3124 compelling defendants to appear for a deposition or precluding defendants from testifying at trial and pursuant to CPLR § 3126 precluding defendants from opposing plaintiff's claims or offering evidence or testimony at trial.
PAPERS NUMBERED
Notice of Motion -Affidavits-Exhibits
NYSCEF Doc No(s) 165-171
Answering Affidavits-Exhibits
NYSCEF Doc No(s) 174-177
Replying Affidavits-Exhibits
NYSCEF Doc No(s) 179-181
Upon the foregoing papers, the motion is decided as follows.
The underlying action is brought by Plaintiff ROBIN ANGOTTI for the recovery of damages allegedly incurred when Defendants, inter alia, negligently spilled oil at the Plaintiff's premises located at 46 Atlantic Drive, Sound Beach, New York, on October 27, 2018.
The court record reflects that on January 7, 2020, the Honorable Maureen A. Healy issued a Compliance Conference Order directing the deposition of the Plaintiff take place on March 3, 2020, and the deposition of the defendant take place on March 12, 2020 (NYSCEF Doc No 33). The Order directed Plaintiff to file the Note of Issue by June 12, 2020.
It appears that Plaintiff was deposed on March 13, 2020. Defendants' deposition did not take place in March of 2020, presumably due to the COVID-19 pandemic. On June 12, 2020, as directed by the prior court order, Plaintiff filed the Note of Issue and Certificate of Readiness, stating that the deposition of the defendants was outstanding (NYSCEF Doc No(s) 38-39). On June 25, 2020, defendants moved to vacate the Note of Issue due to allegedly outstanding Discovery Demands (NYCEF Doc No 43). Plaintiff opposed the motion but did not cross-move to compel the deposition of the defendants. On August 12, 2020, this court issued an order directing Plaintiff to comply with Defendant's discovery demands or be precluded from presenting evidence (NYSCEF Doc No 63).
The court record further reflects that on September 10, 2020, the parties entered a stipulation regarding the inspection of the plaintiff's oil tank (NYSCEF Doc No 80). The stipulation is silent as to the deposition of the Defendants. When the inspection could not be conducted because the oil tank had inadvertently been recycled by a nonparty remediation company, defendants moved to inter alia, dismiss Plaintiff's complaint on the grounds of spoliation. In an order entered on December 24, 2020 (NYSCEF Doc No 125), this Court denied the motion to dismiss. Significantly, the order twice noted that: "discovery is complete." On January 22, 2021, Defendants then moved for leave to renew and reargue, which was denied in an Order entered on March 26, 2021 (NYSCEF Doc No 160).
In the interim, after a virtual pre-trial conference on March 19, 2021, an order was entered on March 22, 2021 (NYSCEF Doc No 159), reflecting that while discovery was outstanding, the only discovery ordered by this Court was for Plaintiff to provide Defendants with trial authorizations. There is no explanation offered as to why the issue of Defendants' depositions was not raised before this court on March 19, 2021.
Defendants then appealed from both the order denying their motion to dismiss entered on December 24, 2020, and the order entered on March 26, 2021, denying their motion for leave to renew/reargue. On May 20, 2022, the Appellate Division, Second Department issued an order dismissing the appeal from the order entered on March 26, 2021, and affirming the order dated December 24, 2020 (Angotti v Petro Home Servs., 208 A.D.3d 1294 [2d Dept 2022]; NYSCEF Doc No 182).
Finally, the record reflects that on May 25, 2022, nearly two years after the Note of Issue was filed, Plaintiff counsel's office sent an email to Defense counsel's office proposing dates for the depositions of the defendants and then follow-up emails on May 31, 2022, and June 6, 2022, and a letter on June 10, 2022. After receiving no response, Plaintiff makes the instant motion to compel/preclude. In opposition, Defendants claim that by filing the Note of Issue, Plaintiff has waived the right to conduct depositions.
"[A] trial court is given broad discretion to oversee the discovery process" (Cioffi v S.M. Foods, 142 A.D.3D 520 [2d Dept. 2016]; Maiorino v City of New York, 39 A.D.3d 601 [2d Dept. 2007]). The drastic remedies of striking a pleading or precluding evidence pursuant to CPLR § 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious (see Arpino v F.J. F. & Sons Elec. Co., Inc.,110 A.D.3d 967 [2d Dept 2013]). "The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to respond to demands or to comply with discovery orders, and the absence of any reasonable excuse for these failures" (Tos v Jackson Hgts. Care Ctr., LLC, 91 A.D.3d 943. 943-944 [2d Dept 2012]).
The moving party bears the burden of making a "clear showing" that the failure to comply was willful and contumacious (Singer v Riskin, 137 A.D.3d 999 [2d Dept. 2013]; John Hancock Life Ins. Co, of N.Y. v Triangulo Real Estate Corp., 102 A.D.3d 656 [2d Dept. 2013]; see Zouev v City of New York, 32 A.D.3d 850, 851 [2d Dept. 2006]; Mendez v City of New York, 7 A.D.3d 766, 767 [2d Dept. 2006]). The drastic remedy of striking a pleading is inappropriate where delays in discovery were caused by both sides (Gross v 141-30 84th Road Apartment Owners Corp., 85 A.D.3d 447 [1st Dept. 2011]).
Here, based on the record above, Plaintiff has not met her burden of proving a pattern of willful and contumacious behavior by the defendants to warrant the drastic remedy of striking their pleadings or precluding them from testifying or offering evidence. It is more than a fair inference that despite filing the Note of Issue on June 12, 2020, Plaintiff's counsel took no action to conduct the deposition of the defendants until May 25, 2022. While counsel blames Defendants, the pandemic and the various executive orders issued by former Governor Cuomo, the Court takes judicial notice of the fact that by September of 2020, if not earlier, remote depositions were being conducted as a matter of course. There is no credible explanation offered as to why plaintiff did not seek to conduct remote depositions of the defendants prior to May 25, 2022, or why counsel did not bring the issue to the attention of the court earlier, particularly at the pre-trial conference on March 19, 2021.
However, it would also be an abuse of discretion to penalize the individual Plaintiff by holding that Plaintiff has "waived" the depositions of the Defendants, especially since the Plaintiff was ordered by the court to file the Note of Issue by June 12, 2020, Defendants were previously ordered by the court to appear for Depositions and there was extensive motion and appellate practice post Note of Issue.
Accordingly, since discovery is outstanding, it is
ORDERED that the motion is granted to the extent that the Note of Issue, filed on June 10, 2022, is hereby vacated; and it is further
ORDERED that the defendants shall appear for an Examination Before Trial (EBT), on a date, time, and place mutually agreed upon by the parties or via Skype for Business, Zoom, Microsoft Teams, or an equivalent, no later than sixty (60) days from the date that this Order is uploaded to NYSCEF or the defendants shall be precluded from presenting evidence and testimony at trial; and it is further
ORDERED that the plaintiff is directed to refile a new Note of Issue, with payment of any requisite fees, on or before, but no later than, Friday, April 28, 2023; and it is further
ORDERED that any and all applications not specifically addressed herein are denied.
The foregoing constitutes the decision and order of the Court.