Opinion
Index No.: 36114/05
01-26-2010
MICAK GREENE and TSAJAH GREENE, infants by their mother and natural guardian, NICOLE BROWN, Plaintiffs, v. LULA A. MULLEN, a/k/a LULA A. MULLEN-MCCARTNEY and RUBY MULLEN, Defendants.
At an IAS Term, Part CCP of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 26th day of January, 2010. PRESENT: The following papers numbered 1 to 7 read on this motion:
| Papers Numbered | |
|---|---|
| Notice of Motion/Order to Show Cause/Petition/Cross Motion andAffidavits (Affirmations) Annexed | 1-4 |
| Opposing Affidavits (Affirmations) | 5-6 |
| Reply Affidavits (Affirmations) | 7 |
| Affidavit (Affirmation) | |
| Other Papers |
Upon the foregoing papers, plaintiffs Michael Greene and Isaiah Greene, infants by their mother and natural guardian, Nicole Brown move for an Order, 1) pursuant to CPLR § 2221, for reargument of that portion of plaintiffs' prior application for an Order, pursuant to §§ 3124 and 3126, to strike the answer of Lula A. Mullen, a/k/a Lula A. Mullen- McCartney and Ruby Mullen (defendants) for willful failure to comply with their discovery demands and with the Court's conference orders; 2) for an Order precluding defendants from presenting evidence at the time of trial that they lacked notice of the chipping and peeling paint conditions at issue herein; 3) for an Order to compel Ruby Mullen to appear for her deposition and, to compel defendants to comply with their demands for Discovery and Inspection and, upon reargument, for an Order granting the foregoing relief. Plaintiffs also move reiterating the same relief sought and, alternatively, for further deposition of Lula A. Mullen, a/k/a Lula A. Mullen-McCartney (Lula) once said documents have been provided; and for an Order, pursuant to 22 NYCRR 202.21(d), for leave to file the Note of Issue while discovery is continuing.
Defendants cross-move for an Order 1) denying plaintiffs' motion to strike their answer; 2) pursuant to CPLR 3126 dismissing plaintiffs' verified complaint for failure to comply with their discovery demands or 3) in the alternative, pursuant to CPLR 3126(2), preclude plaintiffs from introducing evidence at trial against them regarding liability and damages and 4) pursuant to CPLR 3124, compelling plaintiffs to provide full and complete seriatim responses to their discovery demands by a date certain.
This is an action to recover for lead poisoning and other serious injuries resulting from the alleged negligence of defendants.
Plaintiffs move seeking reargument of the Court's decision on the grounds that the Court erred when it refused to strike defendants' answer for their willful failure to comply with its recent order following five prior Court Orders directing Ruby to submit to a deposition. Plaintiffs contend that Ruby is the subject of their motion to reargue which was pending at the time of making their second motion. Among other things, plaintiffs assert that Ruby has been very evasive in submitting to a deposition in spite of their efforts and that her persistent excuses of a medical condition have never been supported with requisite medical evidence. Plaintiffs accuse defendants of failing to produce Ruby for a deposition after many attempts and then, finally producing a letter from defendant's treating physician, Dr. Golda Johnson (Dr. Johnson), in support of their claims that Ruby is "not competent to testify." Plaintiffs challenge the basis and credibility of Dr. Johnson's affidavit which states that Ruby is "ill-suited" to appear for a deposition without demonstrating her lack of capacity to understand an oath and to recall events but merely lists "medical problems unrelated to her cognitive abilities." Plaintiffs contend that the Court overlooked or misapprehended relevant law and facts when it merely precluded Ruby from testifying at the time of trial instead of precluding her "from presenting evidence that she lacked notice of the chipping and peeling paint conditions" in addition to precluding her from testifying. Further, plaintiffs assert that the Court misapprehended the law and facts by ordering that plaintiffs serve interrogatories on Ruby wherein Ruby will benefit from counsel's input instead of directing her to appear for a deposition. Plaintiffs assert that since "Ruby is incompetent, she cannot provide responses to interrogatories under oath." Plaintiffs offer to conduct the deposition in Ruby's home, if necessary.
Plaintiffs also move, separately, in a subsequent motion and argue that this is their "fifth motion in an effort to get defendants to comply with their discovery demands and the court's orders." Plaintiffs describe defendants' general attitude and their "repeated failure to comply with discovery" as "willful and contumacious" and urge the court not to allow such "dilatorious conduct" to "escape adverse consequences." Plaintiffs assert that they are entitled to an order striking defendants' answer. They also assert that although the deposition of Lula Mullen (Lula) was conducted on January 7, 2008 and continued on March 13, 2008, it was held "open" because Lula testified that "she was in possession of repair documents that had been demanded prior to her deposition," yet those documents have still not been provided. Plaintiffs urge the Court to strike defendants' answer or, issue a conditional Order striking defendants' answer if they fail to comply with plaintiffs' Notice for Discovery and Inspection and to produce Lula for a further deposition after the documents discovered have been produced.
In addition, and despite outstanding discovery, plaintiffs request that the Court allow them to file the Note of Issue because it is defendants' failure to comply with discovery that has caused the unnecessary delay.
Defendants cross move, pursuant to CPLR 3126(3), and urge the Court to deny plaintiffs' motion to strike their answer and or/compel discovery and dismiss plaintiffs' verified complaint for failure to comply with their discovery demands. In addition, and in the alternative and pursuant to CPLR 3126 (2), defendants urge the court to preclude plaintiffs from introducing evidence at trial against them regarding liability and damages, and, in further alternative, pursuant to CPLR 3124, to compel plaintiffs to provide full and complete seriatim responses to their discovery demands by a date certain. Defendants deny "plaintiffs' claims that there are additional written materials, invoices andrecords that remain outstanding and that these documents warrant a further deposition of the defendant" and claim that in their response to plaintiff's demands, they set forth clearly that "the defendant has not located any additional records concerning the subject house,"
Defendants retort that their conduct is neither "willful nor contumacious" and that one final opportunity to comply with the discovery order is warranted under such circumstances. Acknowledging that it is in the sound discretion of the court to determine the nature and penalty to impose on a party that fails to comply with discovery, defendants contend that plaintiffs have ignored the Court's orders and are "attempting to avoid providing discovery." Defendants further urge the court to rather preclude plaintiff from introducing evidence regarding liability and damages at trial, or, alternatively, compel plaintiffs to provide "full and complete responses" to their demands for information on liabilities and damages. According to defendants, plaintiffs' alleged injuries warrant that they receive the discovery requested in order to properly prepare their defense. Defendants argue that despite the fact that one of the plaintiffs has been diagnosed with autism, plaintiffs have failed to provide them with authorizations for that plaintiff's school records. Defendants also note that they conducted defense examinations despite not having received medical authorizations. In addition, they assert that since plaintiffs have essentially delayed the discovery process, they should be given a specific date to comply with all discovery.
In opposition to plaintiffs' motion to reargue, defendants assert that the motion should be denied because plaintiffs raised "no new issues of fact or law." Defendants observe that part of the relief plaintiffs are seeking "is to have Ruby Mullen precluded from testifying at trial" and that they "never opposed that branch of the initial motion and it was included in the order." Defendants argue that they apprised plaintiffs of Ruby Mullen's inability to appear for a deposition on medical grounds with a letter from her treating physician and that following that the Court ordered that they produce a physician's affidavit or produce Lula for a deposition. According to defendants, that Order did not set forth any specifications "regarding the content of the affidavit nor were defendants directed to provide any medical records." They opine that Dr. Johnson's affidavit satisfactorily addresses the mental component required by the Court by stating, among other things, that "Ms. Mullen suffers from mild cognitive impairment" and, in addition, asserting that she suffered hypertension, COPD and osteoporosis. Defendants assert that their "actions in this instant case cannot be characterized as willful or contumacious" to warrant striking their answer as that would be an "extremely severe sanction." They assert that plaintiffs' failure to annex exhibits from their initial motion makes the motion procedurally defective. Defendants question the basis of plaintiffs' motion and wonder why they did not "move to strike or, renew/reargue their motion to compel" rather than bringing this motion. They describe this motion as an attempt to relitigate issues already resolved. To buttress their position, defendants contend that there is no basis, in fact or in law, for plaintiffs' request for an order "precluding defendants from presenting evidence at the time of trial that they lacked notice of the chipping and peeling paint conditions at issue herein."
In opposition to defendants' cross-motion and in reply to their opposition to plaintiffs' motion, plaintiffs assert that it is rather the defendants who have failed to properly respond to their Notice for Discovery and Inspection and that defendants' letter sent in response to those demands was not certified, pursuant to 22 NYCRR 130-1.1-a, and is, thus, improper and unacceptable. In response to defendants' assertion that they are not in possession of any more documents, plaintiffs refer to the deposition, where plaintiff inquired of Lula if she found "the repair records" and Lula responded: "[n]ot all of them." Plaintiffs infer from Lula's response that she implied that she had found some of the documents. However, defendants have consistently refused to provide those documents that have apparently been located. Plaintiffs insist that a certified response to their discovery demands providing the requested information or an affidavit detailing the efforts defendants have made to locate the requested documents be provided. Plaintiffs request that the affidavit include defendants' record retention policy, when and how defendants carried out the searches and whether the documents are lost or have been destroyed and the whereabouts of those specific documents defendant testified that she has found. In the event that the documents are in the possession of a non-party, plaintiffs ask that defendants disclose the name and last known address of such custodian(s). Plaintiffs accuse defendants of not exercising good faith in the discovery process in spite of the affirmation of good faith submitted with their cross-motion.
In their reply, plaintiffs contend that defendants cannot claim to be prejudiced because of plaintiffs inadvertent failure to annex exhibits to their motion for reargument when, in fact, those same exhibits to their motion were annexed to their previous motion. Plaintiffs claim that there are no new issues of law or fact. They state the court overlooked and/or misapprehended the facts. Plaintiffs reiterate that the medical report Ruby presents does little to help meet her burden of proof because it is vague and does not pinpoint the exact condition that renders her incapable of undergoing a deposition. Moreover, plaintiffs describe the affirmation by Ruby's physician as "disingenuous and specious" because it is silent on the most important aspect of Ruby's health, her mental capacity, in light of her purported inability to submit to a deposition. Plaintiffs reason that since the report emerged after many court orders, it underscores its spuriousness and defendants' willful and contumacious refusals to comply with the Court's order.
The Court notes that because both motions filed by plaintiffs are identical and seek similar reliefs in the realm of discovery, considerations of judicial economy warrant resolving the matters raised together in this decision and order. The Court finds that defendants' cross-motion seeking further discovery from plaintiffs is moot since plaintiffs have furnished defendants with the discovery requested and no further discovery is outstanding. Defendants do not dispute that plaintiffs have met all outstanding discovery.
As to the merits of plaintiffs' motions for reargument and to compel discovery, defendants assert that their actions are not willful and contumacious and that case law permits one final opportunity to comply with discovery requests even after umpteen attempts have been granted. See Joseph v Roller Castle, 100 AD2d 839, 839 (2d 1984). In Joseph, however, the Appellate Division, Second Department, considered the fact that appellants had conceded that upon further searching they found some of the discovery sought and will provide them to the appellee (Id.). The Court therefore held that "in such circumstances" a balancing of the interests should result in allowing one more opportunity (Id.). Notably, the Joseph Court did not find their conduct to be willful and contumacious as prior court orders had not been ignored in stark contrast to the case at bar. Nonetheless, the appellants in Joseph were given strict deadlines to comply with outstanding discovery (Id.).
Here, however, defendants have already squandered numerous opportunities and have failed to respond appropriately to plaintiffs" requests for the discovery that had been found, as testified to by Lulu. And yet, such discovery has still not been provided. To allow one more opportunity will be useless. Consequently, the Court directs that Lula turn over to plaintiffs the documents she testified to have found and, pursuant to plaintiffs' request, plaintiffs will be allowed to conduct a further deposition of Lula after those documents have been provided.
With regard to Ruby's deposition, defendants submitted an affirmation by Dr. Johnson which states that "she suffers from mild cognitive impairment, hypertension, COPD and Osteoporosis" ... which has "impaired her judgment" and, thus, "[s]he is [ill-suited] to be produced for a deposition." The Court finds Dr. Johnson's affidavit sufficiently addresses Ruby's incapacity to undergo a deposition. The Court notes that since Ruby may very well be ill-suited to respond to plaintiffs' interrogatories Ruby is likewise ill-suited to respond to plaintiffs' inquiries in the form of interrogatories. That notwithstanding, the result is that Ruby cannot also testify as to notice nor present evidence to that effect at the time of trial insofar as she is ill-suited to appear for a deposition and cannot respond to plaintiffs' interrogatories. Defendants' position that Ruby be allowed to present evidence as to notice is untenable under these facts.
Furthermore, plaintiffs assert in their motion for reargument that the Court erred in its previous decision by not striking defendants' answer. The Court fully appreciates, as defendants assert in their opposition papers, that the measure of striking a pleading is a drastic measure which is subject to a court's discretion where willful and contumacious behavior is displayed. See Battaglia v Hofmeister, 100AD2d 833 (2d Dept. 1984). It is for that reason that the Court did not find it compelling to strike defendants' answer previously, however, now that defendants have once again not complied with the Court's orders, the Court has no other option but to grant plaintiffs' motion to reargue and to issue this final order striking defendants' answer without further notice unless defendants provide all outstanding discovery within 45 days of service of a copy of this order with notice of entry. See Maignan v Nahar, 37 AD3d 557 (2d Dept 2007).
Accordingly, it is
ORDERED that plaintiffs' motion to reargue is granted to the extent that defendants' answer will be stricken unless they produce the documents that have been found as testified to by Lula at her deposition within 45 days of service of a copy of this order with notice of entry and; it is further
ORDERED that upon producing the outstanding discovery, Lula will submit to a further deposition upon notice by plaintiffs without further motion practice and; it is further
ORDERED that Ruby is precluded from testifying or responding to interrogatories due to her medical condition without further motion practice and is, consequently, precluded from testifying or presenting evidence at trial as to lack of notice of the chipping and peeling paint conditions and; it is further
ORDERED that plaintiffs' motion to compel discovery is granted to the extent that defendants will comply with all outstanding discovery requests in compliance with plaintiffs' notice of discovery and inspection and; it is further
ORDERED that plaintiffs' request to file the Note of Issue is granted and plaintiffs' date to file their Note of Issue shall be extended to April 19, 2010.
ORDERED that defendants' cross-motion is moot insofar as plaintiffs have provided the discovery sought and no discovery is outstanding.
This constitutes the decision and order of this court.
ENTER,
/s/_________
J.S.C.