Opinion
12244/08.
Decided February 17, 2011.
Sonin Genis, by Robert J. Genis, Esq., Bronx, New York, for Plaintiff.
Richard T. Lau Associates, by Alexander Blishteyn, Esq., Jericho, New York, for Defendant.
It is ordered that this motion by defendant for an order pursuant to CPLR 3212, granting summary judgement in favor of the defendant and dismissing the complaint of plaintiff on the ground that there is a final order of preclusion against the plaintiff in this action is hereby decided as follows:
It is undisputed that on August 17, 2010, Hon. Duane A. Hart so ordered a stipulation with a conditional order of preclusion, directing the plaintiff, Kenneth J. Smith, to furnish defendant by October 15, 2010 with authorizations and full and complete responses to all of the items in defendant's Notices for Supplemental Discovery and Inspection dated June 12, 2009 regarding prior losses from 2000 to 2001, or be precluded from offering all evidence and testimony at the time of trial of this matter as to liability and damages.
Defendant submits that plaintiff failed to respond to the Discovery and Inspection demands before the court-ordered deadline, nor did plaintiff request an extension of time to respond or otherwise seek relief prior to the expiration of plaintiff's time to comply. Defendant conceded that defendant did eventually receive responses to defendant's discovery demands. Defendant does not assert that plaintiff's responses are deficient. Defendant merely argues that under all the circumstances, the Court should enforce the so-ordered stipulation and impose the sanction of preclusion, i.e., precluding plaintiff from offering any evidence and testimony at trial on the issues of liability and damages. In opposition to the motion to enforce the conditional preclusion order, plaintiff counters that the Court should deny defendant's application, as defendant has received the discovery, and therefore cannot show any prejudice and failed to establish that plaintiff's failure to provide discovery was wilful or in bad faith. Moreover, plaintiff argues that the court may relieve a defaulting party of preclusion on the showing of a meritorious claim and a reasonable excuse for the delay, and that the plaintiff has met those requirements. In support, plaintiff's counsel submitted an affirmation explaining that the untimely discovery response was the result of law office failure because a paralegal from the law firm failed to timely respond to the demand, and an affidavit of merit from the plaintiff.
A conditional discovery order becomes 'absolute' upon the failure of the defaulting party to comply with its terms ( see, D'Aloisi v. City of New York , 7 AD3d 750 [2d Dept 2004]; Barriga v. Sapo, 250 AD2d 795 [2d Dept 1998]). To be relieved from an order of preclusion, the party seeking relief must demonstrate (1) timely compliance with the conditional order, or an excusable default and a meritorious cause of action or defense ( see, D'Aloisi, 7 AD3d at 750; Frankel v. Hirsch , 2 AD3d 399 [2d Dept 2003]; Orwell Bldg. Corp. v. Bessaha , 5 AD3d 573 [2d Dept 2004]; Scarlett v. McCarthy , 2 AD3d 623 [2d Dept 2003]; Westchester Med. Ctr. v. Clarendon Ins. Co., 304 AD2d 753 [2d Dept 2003]; Cobble Hill Nursing Home v. Griffo, 240 AD2d 459, 460 [2d Dept 1997]). What constitutes a reasonable excuse is left to the sound discretion of the court ( see, Holt Constr. Corp. v. J R Music World, 294 AD2d 540 [2d Dept 2002]; Matter of Gambardella v. Ortov Light, 278 AD2d 494 [2d Dept 2000]).
The court finds that plaintiff failed to comply with the August 17, 2010 conditional preclusion order and, therefore, plaintiff is bound to demonstrate an excusable default and the existence of a meritorious claim to be relieved from the effects of said order ( see, Gibbs v. St. Barnabas Hosp., ___ NY3d ___, 2010 NY Slip Op 9198; Dipietro v. Duhl, 227 AD2d 515 [2d Dept 1996]; Barrriga v. Sapo, 250 AD2d 795 [2d Dept 1998]; D'Aloisi, 7 AD3d at 750; Orwell Bldg. Corp. 5 AD3d at 573; Scarlett, 2 AD3d at 623; Westchester Med. Ctr., 304 AD2d at 753).
CPLR 3126 provides that if a party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed . . ., the court may make such orders . . . as are just." The drastic remedy of striking a pleading pursuant to CPLR 3126 for failure to comply with court-ordered disclosure should be granted only where the conduct of the resisting party is shown to be wilful, contumacious, or in bad faith ( Ranfort v. Peak Tours, Inc., 250 AD2d 747 [2d Dept 1998]). Wilful and contumacious conduct of the resisting party may be inferred from the repeated failure to comply with court disclosure orders which were entered upon consent and without adequate excuse for failing to comply ( Zhang v. Santanna, 52 AD3d 484 [2d Dept 2008]; Du Valle v. Swan Lake Resort Hotel, LLC , 26 AD3d 616 [3d Dept 2006]). A trial court has broad discretion to oversee the discovery process ( Maiorino v. City of New York , 39 AD3d 601 [2d Dept 2007], quoting Castillo v. Henry Schein, Inc., 259 AD2d 651 [2d Dept 1999]). In Maiorino, supra, the Second Department affirmed the trial court's decision to strike plaintiff's answer because defendant repeatedly failed to comply with court orders directing disclosure and provided inadequate explanations for its failure ( 39 AD3d at 602). However the drastic sanction that disposes of an action is inappropriate without a clear showing that the failure to comply with a discovery obligation was "willful, contumacious, or the result of bad faith".
The Court in Pugsley v. City of New York noted: "attorneys and the parties have a professional and/or legal obligation to fully comply with all court orders, including those which relate to discovery and disclosure demands. Failure to comply with such orders will result in sanctions (both monetary and otherwise) which may among other things, severely affect the prosecution or defense of underlying lawsuit" ( 2007 NY Misc LEXIS 2793 [Sup Ct, Bronx County 2007]).
In Cooper v. Shepherd, 280 AD2d 337 (1st Dept 2001), the court held the delay could be inexcusable but not willful and deserving of sanctions. The court determined:
Although we strongly disapprove of plaintiff's unexcused delay in complying with court-ordered discovery, given the lack of evidence that plaintiff's actions were "willful and contumacious," the strong showing that plaintiff's claim has merit, and the lack of evidence that defendants were prejudiced by any delay in receiving the requested discovery, we find that it was an improvident exercise for the Court to have imposed the drastic sanctions of dismissing the complaint.
Notwithstanding the existence of some evidence of conduct demonstrating a pattern of noncompliance, at this time this Court finds that plaintiff's conduct fails to rise to the level of wilful, contumacious, and bad faith. The Court notes that unlike the non-complying parties in Maiorino, plaintiff has provided a reasonable excuse for plaintiff's untimely compliance with the court's order and defendant's discovery requests. Moreover, plaintiff has now provided responses to defendant's discovery demands. The court has reviewed defendant's request and plaintiff's recent responses. The defendant does not object to the responses, nor do the responses appear to warrant sanctions at this juncture in the litigation.
In the future, plaintiff's counsel should be well forewarned of the Court's policy concerning chronic noncompliance with deadlines as articulated by the Court of Appeals in Gibbs v. St. Barnabas Hospital, ___ NY3d ___ 2010 NY Slip Op 9198 (2010) where the court wrote:
As this Court has repeatedly emphasized, our court system is dependent on all parties engaged in litigation abiding by the rules of proper practice ( see e.g., Brill v. City of New York , 2 NY3d 648 ; Kihl v. Pfeffer, 94 NY2d 118). The failure to comply with deadlines not only impairs the efficient functioning of the courts and the adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent. Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution. Furthermore, those lawyers who engage their best efforts to comply with practice rules are also effectively penalized because they must somehow explain to their clients why they cannot secure timely responses from recalcitrant adversaries, which leads to the erosion of their attorney-client relationships as well. For these reasons, it is important to adhere to the position we declared a decade ago that "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity" ( Kihl, 94 NY2d at 123).
However, the Court finds that plaintiff need be punished and the movant shall be reimbursed for the additional motion practice and court appearances necessitated by plaintiff's non-compliance. Accordingly, plaintiff's attorney is ordered to pay defendant $350.00 for the costs of the motion for sanction ( see, Pugsley v. City of New York, 2007 NY Misc LEXIS 2793 [Sup Ct, Bx County 2007]; see also, MacArthur v. NYCHA, 48 AD3d 431 [2d Dept 2008][holding that the nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court, citations omitted]).
Accordingly, it is ORDERED that the motion is denied on the
condition upon the payment of $350.00 by the plaintiff's counsel personally to the defendant within 20 days after service upon it of a copy of this decision and order, with notice of entry, providing that in the event the condition is not complied with, the Court grants defendant's motion for summary judgment and the plaintiff's complaint is dismissed.
Defendant is directed to serve a copy of this order on plaintiff.
This constitutes the decision and order of the Court.
A courtesy copy of this order is being mailed to the attorneys for the respective parties.