Opinion
Index No.: 100147/08
12-20-2011
ESTRATEGIA CORP. and ALLEN HIRSCH, Plaintiffs, v. LAFAYETTE COMMERCIAL CONDO, Defendant.
DECISION/ORDER
Defendant Lafayette Commercial Condo ("LCC") moves pursuant to CPLR §3126(3) to strike third-party defendant Obivia, LLC's ("Obivia") answer or alternatively to compel a representative of Obivia to appear for depositions. Obivia opposes the motion and cross-moves pursuant to CPLR §3126(3) to dismiss the third-party action as against it, or alternatively for a preclusion order.
Determination of the within motion was held in abeyance at the parties' request pending this court's determination of plaintiffs' motion for partial summary judgment and LCC's cross-motion for summary judgment dismissing the complaint (collectively the "summary judgment motions"). By stipulation dated June 2, 2011, LCC withdrew the instant motion as to third-party defendants Cholo Dinero LLC and 114 Kenmare Associates, LLC d/b/a La Esquina. These third-party defendants agreed that they would appear for depositions after the summary judgment motions were determined, unless this court granted LCC's cross-motion and dismissed the complaint.
This court's October 5, 2010 compliance conference order directed all third-party discovery to be completed on or before December 3, 2010. LCC's counsel alleges that he and/or his office staff called Obivia's counsel on November 19, 2010 and December 2, 2010 and left messages regarding scheduling Obivia's deposition. None of these calls was returned and LCC maintains that Obivia's conduct is wilful and contumacious.
In opposition to LCC's motion, Obivia's counsel contends LCC first contacted his office to schedule depositions on December 2, 2010, the day before the court imposed deadline, and as such waived its entitlement to depositions. Obivia's counsel admits receiving LCC's counsel's November 19, 2010 message but claims it referred only to scheduling depositions generally, without specifically indicating that LCC was attempting to schedule Obivia's deposition.
In support of its cross-motion, Obivia claims it served a notice of discovery and inspection on LCC on April 12, 2010 but never received a response thereto. In response, LCC alleges it served responses to all third-party demands on July 8, 2010 yet Obivia never voiced any objection until it brought the within cross-motion. Obivia does not dispute or even respond to this statement.
The court notes that Obivia's cross-motion lacks an affirmation of good faith as mandated by 22 NYCRR §202.7(a).
Section 3126 of the CPLR provides in pertinent part as follows with respect to penalties for refusal to comply with orders to disclose:
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: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 711 933 (1986); Berman v Szpilzinger, 180 AD2d 612 (1st Dept 1992).
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.
In Stanfill Plumbing & Heating Corp. v Dravo Constructors, Inc., 216 AD2d 101 (1st Dept 1995), the First Department held that the lower court "did not Improvidently exercise its discretion in dismissing the underlying action for the failure of plaintiff to comply with prior court-ordered discovery." The court specifically found that it was proper to dismiss the plaintiffs complaint since the record revealed that the lower court had given the plaintiff ample opportunity to comply with discovery and the plaintiff repeatedly failed to comply. Id.
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 (1" Dept 1990); Kutner v Feiden, Dweck & Sladkus, 223 AD2d 488, 489 (1st Dept 1996), Iv. to app. den., 88 NY2d 802 (1996)(disobedience of a series of court orders directing discovery warranted striking of pleading); Berman v Szpilzinger, supra.
Here, the better practice would have been for LCC to notice the depositions of each third party in writing. Notwithstanding the foregoing, the court cannot conclude that LCC made no good faith effort to schedule depositions within the court-ordered time frame. As such, LCC is granted a final opportunity to complete third-party depositions, provided same are completed on or before January 27, 2012, that date being prior to the previously scheduled January 30, 2012 mediation date In this action so as to avoid any further delay of this action.
As to the cross-motion, Obivia does not dispute that LCC has responded to its demands and as such, the court can only presume that the responses LCC served were adequate. Obivia's cross-motion Is therefore denied. Accordingly, it is hereby
ORDERED that defendant third-party plaintiff LLC's motion is granted solely to the extent that third-party defendant Obivia is directed to appear for a deposition on or before January 27, 2012, and the motion is otherwise denied; and it is further
ORDERED that third-party defendant Obivia's cross-motion is denied in its entirety; and it is further
ORDERED that all third-party depositions be noticed forthwith and completed on or before January 27, 2012. This date is final.
The foregoing constitutes the Decision and Order of this Court. Copies of this Decision and Order have been sent to counsel for LCC and Obivia. Dated: New York, New York
December 20, 2011
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Hon. Martin Shulman, J.S.C.