Opinion
No. 704648/14.
02-03-2017
George MILLEEW, et al., Plaintiff, v. UNIVERSAL BUILDERS SUPPLY, INC., and "John Doe," a fictitious name/person intended to be the unknown operator of the subject vehicle, Defendants.
The following papers numbered and read on this motion by defendants for an order dismissing plaintiff's complaint upon plaintiff's failure to provide court-ordered discovery, or, in the alternative, for an order precluding plaintiff from offering any evidence regarding discovery and information demanded, but not provided.
Papers Numbered
Notice of Motion—Affidavits—Exhibits ECF doc. 20
Upon the papers filed in support of the motion and no papers having been filed in opposition or relation thereto, it is
ORDERED that the within motion is granted, without opposition, and plaintiff's complaint is hereby dismissed, plaintiff having failed to respond to defendants' discovery demands as previously directed by this court's preliminary conference order dated May 13, 2015, so-ordered stipulation (Anna Grimaldi, Court Attorney–Referee), dated May 20, 2015, and compliance conference order dated November 19, 2015; and it is further
ORDERED that all other applications not addressed herein are denied as moot in light of the above-determination.
As pointed out by our Court of Appeals, "[l]itigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated (citations omitted)" (Andrea v. Arnone, Hedin, Casker, Kennedy and Drake, Architects and Landscape Architects, P.C., 5 NY3d 514 [2005] ; see, e.g., Vandashield Ltd. v. Isaacson, 2017 WL 161071, at *4, 2017 N.Y. Slip Op. 00259 (1st Dept. Jan. 17, 2017) (affirming lower court for court providently exercising its discretion in finding, on July 20, 2015, that defendants had waived their right to serve paper discovery demands by disregarding the deadlines set forth in two case management orders); Mangione v. Jacobs, 121 AD3d 953 (2nd Dept.2014) (trial court did not abuse its discretion in dismissing complaint for failure to appear for scheduled independent medical examinations); Coaxum v. Nor–Topia Serv. Station, Inc., 101 AD3d 485 (1st Dept.2012) ("motion court correctly determined that the order dismissing plaintiff's complaint ... was for failure to prosecute, as evidenced by plaintiff's willful and contumacious disregard for the court's discovery orders [citation omitted]. Accordingly, plaintiff's second complaint ... was barred by CPLR § 205(a) and properly dismissed by the motion court."); accord, Ammons–Lewis v. Metro. Water Reclamation Dist. of Greater Chicago, 543 F. App'x 591 (7th Cir.2013) (interests of justice did not support appellate review of challenges to a magistrate judge's report that recommended dismissal of an employment discrimination action for want of prosecution, that were filed one week after the 14–day deadline for such objections had passed; the magistrate had concluded that dismissal was warranted based on employee's disregard of discovery deadlines after receiving two warnings that failure to respond to interrogatories could result in dismissal as a sanction).
Although the present record establishes that plaintiff's counsel was relieved as attorney of record by this court's order dated March 18, 2016, defendants did engage in good faith efforts to contact the pro se plaintiff in an effort to resolve discovery, and brought this motion after the expiration of the court-imposed stay afforded to plaintiff to allow for the retention of new counsel.
The courts are not required to allow an action to linger unnecessarily and prejudice defendants. Defendants are entitled to not have the specter of litigation hanging over them indefinitely, in some cases for many years, caused by a plaintiff that show no interest in engaging in the discovery necessitated by the bringing of an action to recover for claimed injuries.
Louis D. Brandeis, before his ascension as a Justice of the United States Supreme Court, stated:
We who are lawyers have a special obligation, and that is to make our law efficient. The disgrace that has come to the law, the discredit, the disrespect which has come to the law, is because it is inefficient, and because we make rules and we do not provide any machinery for enforcing them.
The Social and Economic Views of Mr. Justice Brandeis, at 402 [Alfred Leif ed. Vanguard Press, Inc., 1930] [quoting excerpts of Brandeis's testimony on "Price and Business Incentive" before a United States House of Representatives Subcommittee on May 15, 1912], quoted in The Words of Justice Brandeis, at 120 [Solomon Goldman ed. Henry Schuman, Inc., 1953], and in Perry v. Bonneau, 12 Misc.3d 431, 433 [Sup Ct Queens County 2006] [Markey, J.] and Garcia v. Munnerlyn, 191 Misc.2d 689, 689–690 [NYC Civ Ct Queens County 2002] [Markey, J.].
As the court in Ortega v. City of New York (11 Misc.3d 848 [Sup Ct. Kings County 2006] ) observed: "Enforcement of court orders goes to the very underpinning of our legal system and without enforcement there would be no rule of law." Id. at 859.
The motion is thus granted, and the complaint is dismissed.
The foregoing constitutes the decision, order, and opinion of the Court.