Opinion
118245/06.
March 1, 2010.
Decision and Order
In this action alleging causes of action for common law negligence and violations of Labor Law §§ 200, 240 and 241, defendant-third-party plaintiff 6-10 East First Street Group, LLC ("6-10" or "movant") moves to compel third-party defendants Dino's General Contractor Corp. and Dino's General Contracting Sheet Metal Corp. (collectively "Dino's") to respond fully to its discovery demand and to comply with several discovery orders. Alternatively, 6-10 requests an order of preclusion. Dino's submits an affirmation in opposition, stating that it has provided the outstanding discovery and the motion is now moot. Movant disputes that Dino's has properly responded to its demand.
This motion concerns only a single outstanding discovery demand. Specifically, testimony from plaintiff's October 24, 2008 deposition (Exh. J to motion) indicates the existence of an eye witness to plaintiff's accident. However, plaintiff was only able to identify this witness as "Dino's nephew". On November 7, 2008, movant served a written demand (Exh. E to motion) to produce seeking the full name and last known address of "Dino's nephew". Dino's never responded to this demand and at subsequent court conferences the court issued no less than three (3) orders directing that this information be provided. Over a year after its written demand, 6-10 was compelled to bring this motion.
See so-ordered stipulations dated February 24, 2009, June 9, 2009 and September 8, 2009 (Exhs. F, G and H to motion). After this motion was served, a subsequent so-ordered stipulation dated December 2, 2009 required Dino's to provide Dino's nephew's full last name and last known address. See Miller Reply Aff. at Exh. K.
After being served with this motion, Dino's finally served a response on January 12, 2010, stating that "'John'" (first name unknown) Radoveshi, resides at 14 Windom Avenue, Staten Island, New York." Marino Aff. in Opp. at Exh. A. Counsel for Dino's alleges that this information was obtained after retaining an investigator. No reason is given as to why the witness' first name could not be ascertained. Among the reasons cited for the delay, counsel alleges that it was only recently substituted as counsel of record for Dino's and that prior counsel had been unsuccessful in contacting Dino's, which is no longer in business.
Prior counsel's certified mail to Dino's post-marked June 4, 2009 was returned with the markings "attempted not known" and "return to sender". Marino Aff. in Opp. at Exh. B.
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:
. . . 2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses . . .
Here, the court agrees with movant's position that Dino's response is virtually worthless. From this record, it appears that Dino's principal and his nephew reside at the address provided in the response. Even if the two do not reside at the same address, it is unlikely that Dino's principal does not know his nephew's name or could not ascertain it. Movant further notes that an internet search revealed that 5 to 7 people reside at the address provided. Without a full and correct name, it would be impossible for 6-10 to serve a subpoena on this non-party witness.
Despite all of the foregoing, counsel for Dino's argues that its clients' conduct is not wilful, wanton or contumacious. The court does not agree. While counsel may have made efforts to comply with its discovery obligations, it appears that Dino's has simply chosen to bury its head in the sand and not participate in this litigation. The contact information for an eye witness to plaintiff's accident is clearly relevant, is not onerous and should not take over a year to provide. Dino's has had ample opportunity to comply with one simple request and its disobedience of multiple court orders frustrates the CPLR's disclosure scheme. See, e.g., Zletz v. Wetanson, 67 NY2d 711 (1986); Berman v. Szpilzinger, 180 AD2d 612 (1st Dept. 1992).
In its reply, 6-10 advises that after this motion was served Dino's refused to appear for its scheduled deposition as required by court order.
Notwithstanding the court's broad discretion under CPLR § 3126, movant first requests an order compelling compliance and/or alternatively, an order of preclusion. While the circumstances arguably warrant striking of Dino's answer, such relief was not specifically requested. Accordingly, 6-10's motion is granted to the extent that it is
ORDERED that within twenty (20) days of service of a copy of this decision and order with notice of entry, Dino's shall provide the full name and last known address of "Dino's nephew", as testified to at plaintiff's deposition; and it is further
ORDERED that in the event that Dino's fails to comply with the foregoing, movant 6-10 shall submit an affirmation detailing the default and shall submit an order of preclusion on notice.
This constitutes this court's Decision and Order. Courtesy copies of same have been provided to counsel for movant and Dino's.