Opinion
2012-10-4
Sherry MEHTA, Plaintiff–Appellant, v. Roger CHUGH, etc., et al., Defendants–Respondents.
Peter M. Agulnick, Great Neck, for appellant. Anthony Mattesi, New Rochelle, for Chugh respondents.
Peter M. Agulnick, Great Neck, for appellant. Anthony Mattesi, New Rochelle, for Chugh respondents.
Sanjay Chaubey, New York, for New Age Perfumes, Inc., respondent.
GONZALEZ, P.J., SAXE, DeGRASSE, FREEDMAN, ROMÁN, JJ.
Order, Supreme Court, New York County (Louis B. York, J.), entered August 22, 2011, which, to the extent appealed from as limited by the briefs, dismissed the complaint, unanimously reversed, on the law, without costs, and the dismissal vacated. Order, same court and Justice, entered March 30, 2011, which, to the extent appealed from as limited by the briefs, granted defendants' cross motions for sanctions, pursuant to CPLR 3126, to the extent of precluding plaintiff from testifying at trial, unanimously affirmed, without costs.
The court improperly dismissed the complaint on the ground that plaintiff defied the court's order to serve and file a note of issue. Although court orders may constitute a “written demand” to serve and file a note of issue under CPLR 3216(b)(3) ( see e.g. Basile v. Chhabra, 24 A.D.3d 149, 150, 805 N.Y.S.2d 54 [1st Dept. 2005] ), the March 2011 order here, which directed that the note of issue be filed by April 22, 2011, did not give plaintiff the required 90 days to serve and file a note of issue, or contain a statement that failure to timely do so would serve as a basis for a motion to dismiss ( seeCPLR 3216[b][3]; Armstrong v. B.R. Fries & Assoc., Inc., 95 A.D.3d 697, 697–698, 945 N.Y.S.2d 74 [1st Dept. 2012] ).
The court, however, providently exercised its discretion in precluding plaintiff from testifying at trial, given her irresponsible approach to discovery ( see Healy v. ARP Cable, 299 A.D.2d 152, 154, 753 N.Y.S.2d 38 [1st Dept. 2002];New v. Scores Entertainment, 255 A.D.2d 108, 108, 679 N.Y.S.2d 382 [1st Dept. 1998] ). Plaintiff failed to appear for her deposition on the court-ordered date of June 8, 2010, despite defendants' attempts to confirm her availability before the deposition date; never apprised the court of her inability to be deposed that day, despite clear directives to do so in the preliminary conference order; and never explained her failure to do any of the foregoing. Plaintiff also failed to timely respond to defendant New Age Perfumes, Inc.'s interrogatories by the discovery deadline, despite multiple requests by New Age that she do so.