Opinion
105095/05.
Decided on January 21, 2010.
Bournazos Matarangas, Attorneys for Plaintiff.
Jones Hirsch Connors Bull, P.C., Attorneys for Defendant.
Before the court are two discovery motions. In motion sequence number 008 plaintiff Kimberly Creekmore ("Kimberly" or "plaintiff") seeks an order striking defendant PSCH, Inc.'s ("PSCH" or "defendant") answer or, alternatively, compelling PSCH to appear for a deposition. In motion sequence number 009 defendant seeks various forms of relief pursuant to CPLR § 3126 (discovery sanctions and a stay of proceedings until discovery is complete), § 2004 (extension of discovery deadlines) and 22 NYCRR § 130-1.1 (monetary sanctions for frivolous conduct), based upon plaintiff's alleged discovery defaults. Each party opposes the other's motion, both of which are consolidated for disposition.
The court first addresses PSCH's motion and begins its analysis with a summary of the relevant provisions of three of the conference orders issued in this action. First, a June 3, 2008 status conference order provides, inter alia, for: 1) plaintiff's deposition to take place on July 10 and July 11, 2008, followed by defendant's deposition on July 15, 2008; 2) plaintiff to supplement her bill of particulars by June 30, 2008; and 3) plaintiff to respond to defendant's previously served notice for discovery and inspection by June 30, 2008. See Exh. I to Defendant's Motion. Kimberly was deposed on July 10 and 11, 2008 as set forth in the June 3, 2008 order. However, defendant's counsel indicated on the record that plaintiff's deposition had not been completed ( Id. at Exh. J) "due to the number of outstanding discovery demands and notices which had not been complied with and, further, in light of the testimony which engendered additional discovery requests . . ." O'Bryan Aff. in Support of Defendant's Motion at ¶ 24. In light of the foregoing, PSCH's deposition scheduled for July 15, 2008 was adjourned, has not been rescheduled as of this date and is the subject of plaintiff's motion.
Defendant's counsel claims plaintiff provided a supplemental bill of particulars the evening before her deposition (9 days late).
A subsequent compliance conference order dated October 28, 2008 provides for plaintiff to respond to the following within 30 days: 1) Notice for Discovery and Inspection dated August 7, 2008; 2) demand for authorizations to obtain records from plaintiff's current psychiatrist, psychologist and/or social worker as demanded in PSCH's prior discovery demand dated May 10, 2006; and 3) demands for witnesses, expert witness information and collateral source information. See Exh. T to Defendant's Motion.
This notice for discovery and inspection contains 21 demands, only 3 of which are for actual documents (to wit, copies of a "competency letter", certain letters from plaintiff's former counsel and a lease). The remaining demands seek the names and/or addresses of various individuals mentioned in Kimberly's deposition.
By compliance conference order dated March 24, 2009, counsel for the parties provided as follows: "further deposition of plaintiff to be resolved by counsel; failing that, the parties shall submit letters to chambers for final resolution of the issue. The defendant's EBT is held in abeyance pending resolution of issue of plaintiff's further EBT." See Exh. A to Defendant's Motion. The March 24, 2009 order further provides for plaintiff's deposition to take place on May 20 and May 21, 2009 "if necessary", with defendant's deposition to be held on May 28 and May 29, 2009 "if necessary". Finally, the March 24, 2009 order requires Kimberly to provide responses, to the extent not already provided, to: demand for authorizations dated August 7, 2008; notice for discovery and inspection dated September 29, 2008; demand for authorizations dated November 11, 2008; demands for witnesses and collateral source information; and authorizations for records of plaintiff's current psychiatrist, psychologist or social worker.
As plaintiff notes, this date appears to be erroneous, as no such demand is attached to PSCH's motion.
In opposition to PSCH's motion, Kimberly summarily claims to have complied with all discovery demands. This blanket statement is not supported by the record, which reveals that plaintiff provided authorizations to defendant on or about October 20, 2008 (see Exhs. A D to Bournazos Aff. in Opp.) and responded to PSCH's May 10, 2006 and August 7, 2008 notices for discovery and inspection on October 20 and October 28, 2008, respectively ( Id. at Exhs. B C). However, defendant contends that plaintiff's responses are incomplete and/or insufficient.
Regarding the penalties for refusal to comply with orders to disclose, CPLR § 3126 states, in pertinent part:
If any party . . . refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them:
1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or
2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses . . .; or
3. an order striking out pleadings or parts thereof, . . . or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.
Where a party disobeys a court order and by his conduct frustrates the disclosure scheme provided by the CPLR, dismissal of the party's pleadings is within the broad discretion of the trial court. Zletz v. Wetanson, 67 NY2d 711 (1986); Berman v. Szpilzinger, 180 AD2d 612 (1st Dept. 1992) (even though afforded ample opportunity to comply with discovery, plaintiff's repeated failure in this regard warranted dismissal of the complaint). While the penalty of striking a pleading for failure to comply with disclosure is extreme, the courts nonetheless have held that dismissing the pleading is the appropriate remedy where the failure to comply has been "clearly deliberate or contumacious." Henry Rosenfeld, Inc. v. Bower Gardner, 161 AD2d 374 (1st Dept. 1990); Kutner v. Feiden, Dweck Sladkus, 223 AD2d 488, 489 (1st Dept.), lv. to app. den., 88 NY2d 802 (1996).
A review of this record, particularly the responses attached to plaintiff's counsel's affirmation in opposition, reveals that the following items, which plaintiff's counsel does not address, remain outstanding: 1) plaintiff's independent medical examination ("IME"), which was to occur 45 days after completion of her deposition in accordance with the June 30, 2008 conference order; 2) response to demand for witnesses and collateral source information, as per March 24, 2009 and October 28, 2008 conference orders; 3) authorizations to obtain records from psychiatrists, psychologists and/or social workers currently treating plaintiff, as demanded in the May 10, 2006 notice for discovery and inspection and required by the October 28, 2008 and March 24, 2009 conference orders; 4) authorization to obtain records from Laura Morgan, as demanded in the August 7, 2008 demand for authorizations and required by the March 24, 2009 conference order; and 5) Kimberly's tax returns as demanded at her deposition and authorizations for IRS and W2 records as required in the October 28, 2008 compliance conference order.
Plaintiff's October 20, 2008 response to the May 10, 2006 notice for discovery and inspection states that these authorizations were "[t]o be provided under separate cover after completion of deposition." See Bournazos Aff. in Opp. at Exh. C. It appears they were never provided.
As plaintiff does not dispute that the foregoing are outstanding and prior conference orders compel their production, PSCH's motion is granted to the extent that plaintiff is directed to produce items two through five above within thirty (30) days of service of a copy of this decision and order with notice of entry. In the event of plaintiff's failure to comply, the complaint shall be stricken. See directives, infra. As to item one, defendant is clearly entitled to conduct an IME of Kimberly, the date of which is contingent upon whether or not the court determines that a further deposition of plaintiff is required. See discussion infra.
Also outstanding are copies of the lease for 220 Steward Avenue, Syracuse, New York (the "lease"), an alleged "competency letter" and certain letters from Kimberly's former counsel. Kimberly testified to the existence of her former counsel's letters at her deposition (see Exhs. K and L to Defendant's Motion). Defendant alleges plaintiff also testified to the existence of the "competency letter" and lease, however these portions of the deposition transcript were not provided. Finally, Kimberly was also unable to provide full names and contact information for many individuals she referenced in her deposition.
Although it is not specifically stated in PSCH's motion, it appears that the so-called competency letter contained a professional assessment of plaintiff's competency. It is unclear who prepared this letter.
PSCH's August 7, 2008 demand identifies these letters as "regarding what is owed to or by [plaintiff] and is in the possession of the Guardian ad litem, Jill Sherman . . . "
It is claimed that the individuals in question have knowledge of alleged sexual assaults Kimberly claims to have suffered, and/or are "persons with whom she resided subsequent to the sexual assault which is the basis of this lawsuit . . . treating physicians, psychiatrists, psychologists, or social agencies from whom she received assistance following the subject assault, payments received from Social Security or S.S.I. . . ." O'Bryan Aff. in Supp. of Motion at ¶ 55.
After plaintiff's deposition, PSCH reduced the above demands to writing in its August 7, 2008 notice for discovery and inspection ( Id. at Exh. H). Plaintiff's response dated October 28, 2008 (Exh. B to Bournazos Opp. Aff.) states that she is not in possession of the lease and competency letter, nor does she possess the names and addresses of the majority of named individuals. As to her former counsel's letters, plaintiff responded that these were subject to the attorney-client privilege ( Id.).
PSCH contends Kimberly's foregoing responses are wholly insufficient. Plaintiff's counsel responds in his affirmation in opposition as follows:
As the court is aware the plaintiff in this action has been institutionalized from a very early age and for most of her life. She suffers from mental deficiencies and as such all responses have been made after careful inquiries with the plaintiff based upon her recollection of events, names and addresses. For defendant to demand what they think would be appropriate responses to their requests would require shear [sic] speculation, guessing or fabrication of facts which plaintiff is unwilling to do . . .
Defense counsel is similarly unmoved by the foregoing and poses the obvious and inevitable question: "can this plaintiff make out a prima facie case if she is unable to respond to the simplest of inquiries?" O'Bryan Reply Aff. at ¶ 5. That question, however, is not before the court on this non-dispositive motion.
CPLR 3120 (1) (i) permits discovery of "designated documents . . . which are in the possession, custody or control of the party . . ." It is axiomatic that a party "may not be compelled to produce information that does not exist or which he does not possess (citations omitted)." Corriel v. Volkswagen of Am., Inc., 127 AD2d 729 (2d Dept. 1987).
Here, while plaintiff claims she is not in possession of the competency letters, lease and former counsel's letters, there is no indication that any good faith effort has been made to locate these items, or that she cannot obtain them. While these documents may not be in Kimberly's physical possession and custody, some of them may nonetheless be within her control, as the deposition transcript alludes to former counsel's letters being in guardian ad litem Jill Sherman's possession. In any event, further inquiry on plaintiff's part, which may require assistance from her counsel and/or her guardian, is warranted. Plaintiff's efforts in this regard, if not fruitful, should be detailed in an affidavit indicating the steps taken to obtain the requested documents.
The court rejects plaintiff's claim that these letters are subject to the attorney client privilege for the reasons set forth in PSCH's motion and reply papers.
The same is also true of Kimberly's failure to recall names and addresses of various individuals, such as a landlord in Syracuse, New York, an alleged fiancé and various people with whom she has resided in Georgia, South Carolina and Syracuse, some or all of whom might be potential witnesses. Plaintiff is similarly directed to make further inquiry and, if unsuccessful, to detail her efforts in an affidavit.
One final issue must be addressed. There has been an ongoing discrepancy regarding Kimberly's social security number as indicated on past authorizations. This must be resolved and clearly can only be done so by plaintiff. An inaccurate social security number renders the authorizations unusable. Accordingly, plaintiff is directed to confirm her proper social security number.
Concerning plaintiff's continued deposition, plaintiff's counsel notes that defendant's counsel failed to comply with the March 24, 2009 order's requirement that letters be sent to the court if counsel were unable to resolve the issue themselves. Having waited approximately six (6) months from the date of the order to bring this motion, plaintiff argues defendant has waived any further deposition of plaintiff.
The court disagrees. Although PSCH should have followed the directives in the March 24, 2009 conference order with respect to contacting the court on this issue, and it would have been preferable if the motion were brought more expeditiously, this default is de minimis, particularly in light of the many delays to date in this five year old case, many of which could not have been prevented. Despite his refusal to agree to Kimberly's continued deposition at the March 24, 2009 conference, plaintiff's counsel's opposition does not dispute that the deposition was not completed. Indeed, plaintiff's own response to defendant's demand for discovery and inspection dated October 20, 2008 indicates that her deposition is not complete. See Bournazos Aff. in Opp. at Exh. C, ¶ 2.
This case has moved at a glacial pace in light of inter alia, Kimberly's personal limitations, her frequent and lengthy absences from New York and motion practice arising from PSCH's persistent efforts to obtain relevant discovery from non-parties.
The nature of this case is such that PSCH's defenses are dependent upon its ability to obtain information from plaintiff and non-parties. Under these circumstances, defendant would be severely prejudiced if precluded from proceeding with plaintiff's deposition. Accordingly, Kimberly's continued deposition is hereby ordered in accordance with the directives set forth below.
At this time the court declines to impose sanctions upon plaintiff and that branch of PSCH's motion is denied. While not the epitome of diligence, plaintiff's conduct has not been wilful or contumacious.
Turning to plaintiff's motion, at this time the application based upon PSCH's default in appearing to be deposed is premature. Clearly, plaintiff is entitled to depose defendant. However, defendant's deposition should not proceed until such time as plaintiff's deposition is completed. Accordingly, the portion of plaintiff's motion seeking to strike PSCH's answer is denied and the portion thereof seeking to compel defendant to appear for a deposition is granted as per the directives below.
Accordingly, it is hereby
ORDERED that defendant's motion (seq. no. 009) is granted to the extent that, within thirty (30) days of service of a copy of this decision and order with notice of entry, plaintiff is directed to: 1) respond to defendant's demand for witnesses and collateral source information; 2) provide all outstanding authorizations, containing her correct social security number, as detailed above; and 3) provide copies of her tax returns as demanded at her July 2008 deposition; and it is further
ORDERED that, within thirty (30) days of service of a copy of this decision and order with notice of entry, plaintiff shall produce copies of the lease, competency letter and letters from her former counsel (all as defined above), and shall provide the full names and contact information for potential witnesses as demanded at her deposition and in defendant's August 7, 2008 demand, or, in the event she is unable to comply, an affidavit or affirmation as discussed above; and it is further
ORDERED that plaintiff shall appear for her continued deposition within 90 days of service of a copy of this decision and order with notice of entry, at a time and place to be agreed upon at the status conference directed below; and it is further
ORDERED that plaintiff shall appear for an independent medical examination within 45 days of completion of her deposition; and it is further
ORDERED that in the event that plaintiff fails to comply with any of the foregoing, defendant shall submit an affirmation detailing the default and shall submit an order on notice striking plaintiff's complaint in its entirety; and it is further
ORDERED that plaintiff's motion (seq. no. 008) is granted to the extent that defendant is directed to appear for its deposition within 20 days of completion of plaintiff's deposition, at a time and place to be agreed upon; and it is further
ORDERED that all remaining branches of both motions are denied.
Counsel for the parties are directed to appear for a status conference on
February 9, 2010 at 9:30 a.m. at I.A.S. Part 1, Room 325, 60 Centre Street, New York, New York.
This constitutes this court's Decision and Order. Courtesy copies of same
have been provided to counsel for the parties.