Opinion
14170-94.
Decided April 6, 2006.
PLTF'S/PET'S ATTY: FRANK ASSOCIATES, Farmingdale, NY.
DEFT'S/RESP'S ATTY: NIXON PEABODY, Garden City, NY.
ORDERED that this motion by the defendants to dismiss the plaintiff's complaint pursuant to CPLR § 3126(3) for plaintiff's wilful failure to comply with disclosure which has prejudiced the defendants or in the alternative to strike the plaintiff's claims for back pay and preclude any proof or claims for post termination income is hereby granted in its entirety and the plaintiff's action is dismissed. The plaintiff's motion to quash is denied as moot in light of the dismissal of the action.
Plaintiff instituted this action in 1994 alleging, inter alia, claims of religious discrimination (anti-Semitism) while employed by the defendants from October 19, 1989 until June 28, 1994 when plaintiff, along with 400 other sales employees, was laid off during what the defendants called a restructuring process. Plaintiff's termination resulted from his performance evaluation being unsatisfactory and this lawsuit thereafter ensued.
Defendants now move for dismissal of the plaintiff's complaint for repeated wilful violations of their demands for discovery and a disregard and repeated violations of this Court's orders to disclose. In particular, defendants allege the plaintiff's repeated refusals to provide his post employment history.
For the following reasons, the defendants' motion to dismiss the plaintiff's complaint for wilful and repeated violations of defendants' discovery demands and discovery orders of this Court resulting in severe prejudice to the defendants is hereby granted and the plaintiff's action is dismissed.
Notwithstanding repeated Court orders to provide post termination employment records as well as complaints of discrimination against other employers which plaintiff failed to comply, it was subsequently discovered that a prior anti-Semitism complaint against a post termination employer, Astra Zeneca, was filed with the Equal Employment Opportunity Commission ("EEOC") and the documents and EEOC file was destroyed pursuant to the Commission's policy. Defendants claim that virtually identical charges were made against Astra Zeneca and such documents are now no longer available.
Even more disturbing to the Court is that the plaintiff repeatedly argued that the Astra Zeneca settlement of these anti-discrimination charges was subject to a confidentiality agreement and yet when the Astra Zeneca records were finally produced, there was no confidentiality agreement to prevent the disclosure of this agreement. Moreover, the delay in providing the discovery of the settlement agreement and the prior claims of discrimination prevented the defendants from reviewing the EEOC file which has now been destroyed pursuant to Commission policy.
It has been eleven (11) years since the commencement of this lawsuit and this Court has issued over five (5) discovery orders (dated June 11, 2003, November 12, 2003, February 18, 2004 and two undated orders) requiring the plaintiff to not only submit to the completion of his deposition but to provide documentation denied to the defendants until threatened with dismissal. As a result, the defendants point to a clear and unequivocal prejudice with the destruction of the EEOC file of the Astra Zeneca discrimination case, which appears on its face to amount to identical claims as made against these defendants. This continual delay of discovery has not only extended this case to well over eleven (11) years but has frustrated defendants' attempts to get full disclosure of the plaintiff's employment history and prior anti-discrimination claims against other employers. These actions have finally resulted in prejudice to the defendants with the destruction of relevant evidence of identical claims made to the EEOC. It is apparent at this juncture that there were at a minimum two (2) complaints of anti-Semitism as against two (2) post termination employers, now disclosed, i.e. Astra Zeneca and American Veterinary Supply Corp., though supporting documentation and discovery of those charges are still not complete as a result of the less than candid approach taken to discovery by the plaintiff.
While this Court recognizes that dismissal of a case is the most drastic of sanctions to be imposed, it is appropriate where the plaintiff has exhibited not only a wilful and contumacious disregard of discovery demands and the Court's orders to provide discovery but manifests bad faith to both the Court and defendants' attorneys by asserting a confidentiality agreement where none existed to frustrate legitimate discovery demands. See, Irizarry v. Ashar Realty Corp., 14 AD3d 323, 787 NYS2d 312 (2nd Dept. 2005). The plaintiff's continual delay of the discovery process with specious arguments and fact patterns asserted which were untrue and the continual failure to fully disclose his post termination employment and subsequent complaints of discrimination clearly point to a wilful refusal to follow the dictates of the CPLR or this Court's prior orders and demands for full and complete disclosure and thus mandate the extreme sanction of dismissal. Beizer v. Schwartzben, 13 AD3d 327, 785 NYS2d 350 (2nd Dept. 2004); Gozalez v. Guirguis, 264 AD2d 813, 695 NYS2d 605 (2nd Dept. 1999). See also, Ranfort v. Peak Tours Inc., 250 AD2d 747, 672 NYS2d 918 (2nd Dept. 1998).
The plaintiff's motion seeking to quash a subpoena duces tecum directed at the plaintiff's former attorneys, Rosen Leff, with regard to documents from Howard Leff, Esq. to a former employer of plaintiff, American Veterinary Supply Corp., involving another discrimination claim by plaintiff against that former employer is hereby denied in its entirety in light of the dismissal of the plaintiff's action.
Accordingly, the defendants' motion to dismiss the plaintiff's 11 year old discrimination lawsuit pursuant to CPLR § 3126(3) is hereby granted in its entirety and the plaintiff's action is dismissed.
Settle Judgment
The foregoing constitutes the decision of this Court.