Opinion
121805/03.
Decided May 19, 2005.
Defendant pro se moves pursuant to CPLR 3126 to dismiss this action based upon the alleged failure of the plaintiff to answer deposition questions and provide document discovery. For the reasons that follow, the court in its discretion finds that this is the unusual case where a party's conduct has been so dilatory and inconsiderate to the opposing party as to warrant the sanction of dismissal.
Plaintiff commenced this defamation action against the defendant seeking an injunction and damages against the defendant for material statements published on an internet website. The court by Order dated February 17, 2004, granted plaintiff's motion for an injunction on default. Thereafter, the defendant appeared pro se in this action and answered. The parties appeared before this court for a preliminary conference on March 19, 2004, and pursuant to a discovery order of that same date the parties waived their rights to depositions and the plaintiff was directed to file a note of issue by May 28, 2004.
Following a Compliance Conference held on May 14, 2004, the court set a new discovery schedule which permitted defendant pro se to serve a notice of deposition upon the plaintiff on or before June 18, 2004, and directed the defendant to pay the expenses of the court reporter. The court also extended the plaintiff's time to serve a notice of discovery and inspection until June 11, 2004, and set July 30, 2004, as the end date for all disclosure. The court further extended plaintiff's time to file a note of issue to September 24, 2004. A subsequent status conference was adjourned from July 29, 2004 to September 14, 2004, and on that date the court held a status conference as well as hearing oral argument on the separate motions by plaintiff for contempt and by defendant to dismiss. The court subsequently denied both motions by Orders dated January 3, 2005, and directed that the parties appear at a status conference on January 28, 2005 (Motion Seq. No. 4). Plaintiff's counsel by letter dated January 21, 2005, stated that she would not "not be available that day."
On the current motion the defendant argues that during the deposition of the plaintiff held on June 14, 2004, as directed by the court, plaintiff's counsel in spite of the parties' stipulation that "all objections, except as to the form of the question, shall be reserved to the time of trial," raised numerous objections without letting the defendant finish his questions. The defendant further contends that plaintiff has failed to adequately respond to defendant's request for documents by asserting that the documents defendant seeks are not relevant. Defendant also argues that the plaintiff has not responded to defendant's request for interrogatories and admissions.
Plaintiff submits the affirmation of plaintiff's counsel in opposition to defendant's motion. Plaintiff argues that defendant's motion is barred by the doctrine of res judicata because this court by Order dated January 3, 2005, (Motion Seq. No. 4) denied defendant's motion to dismiss. The plaintiff further argues that defendant's motion does not set forth a ground for dismissal under CPLR 3211 and that the motion does not raise any new factual or legal issues. The plaintiff finally asserts that the defendant cannot seek dismissal under CPLR 3126 because there was never a court order to compel disclosure.
The court finds that plaintiff's arguments are meritless. Plaintiff fails to demonstrate that the doctrine of res judicata has any application to the present motion. Though the court denied defendant's prior motion to dismiss under CPLR 3211, the defendant's current motion is not a motion to dismiss but rather is a CPLR 3126 motion that seeks the imposition of sanctions, one of which is dismissal of the action, for failure to disclose. There is no collateral bar to defendant's application for such relief based upon plaintiff's alleged failure to provide discovery as the defendant has not previously sought this relief on the grounds of CPLR 3216. Additionally, plaintiff's argument that defendant's motion is barred because this court did not compel plaintiff to answer the questions asserted by defendant is contrary to the statutory language which allows the imposition of sanctions when a party "willfully fails to disclose information which the court finds ought to have been disclosed." CPLR 3126.
Plaintiff fails to offer a single argument in opposition to defendant's accusation that plaintiff has failed to live up to his discovery obligations. Defendant states that plaintiff failed to answer questions posed by the defendant during the deposition even after defendant repeated the questions following the objection of plaintiff's attorney. See Deposition Transcript of Alex Stelmak, June 14, 2004, at 20-21, attached as Exhibit 1 to defendant's moving papers (hereinafter the "Deposition Transcript"). The court also notes that the transcript indicates that plaintiff's counsel interposed numerous objections on the grounds of "relevancy" during the course of the deposition. Defendant further states that four times during the deposition plaintiff's counsel interrupted defendant's questioning with objections so as to prevent defendant from even completing the question. Plaintiff offers no argument in opposition to defendant's contention that the conduct of plaintiff's counsel during the court-ordered deposition, which was paid for by defendant pro se, was so prejudicial as to warrant dismissal of the action.
The defendant contends that the plaintiff has failed to adequately respond to defendant's request for documents. The court notes however that the plaintiff did respond to defendant's document requests with appropriate responses and objections as set forth in Exhibit 9 of defendant's moving papers. However, the court does find that the plaintiff's responses, in the absence of any evidence or argument to the contrary from the plaintiff on this motion, are insufficient. Plaintiff's response to document requests 1, 3 and 12 consists merely of a promise to forward responsive documents to the defendant when and if they are found. Plaintiff's responses to the other document requests are qualified by the statement that such responses are made "to the extent relevant documents are requested." CPLR 3101 does not provide that discovery is limited to materials the party to an action considers "relevant," but rather the statute provides that "there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." The manner in which plaintiff responded to defendant's document requests did not comply with CPLR 3122 (b) thus depriving the defendant and this court the opportunity to consider plaintiff's objections by way of motion under CPLR 3124. Once again, plaintiff on this motion fails to provide any justification for the objections to defendant's document requests.
The defendant further argues that plaintiff has failed to respond to defendant's request for interrogatories and defendant's separate notice to admit. Once again, plaintiff has failed to dispute defendant's allegations and does not deny receipt of defendant's discovery requests.
"Although the striking of a pleading pursuant to CPLR 3126 is an extreme and drastic penalty to be invoked only where the refusal to obey an order for disclosure or failure to disclose pursuant to notice was clearly contumacious or deliberate, it is equally well settled that the nature and degree of the penalty to be imposed for such a refusal or failure is a matter lying within the sound discretion of the court." Berman v. Szpilzinger, 180 AD2d 612, 613 (1st Dept 1992). In this case, the defendant who appears pro se has in fact complied with this court's discovery orders by conducting depositions and serving appropriate discovery requests upon the plaintiff in furtherance of his defense of this action. Even on this motion, defendant challenges with particularity plaintiff's objections to disclosure and the alleged failure to plaintiff to respond to various discovery requests. On the other hand, the plaintiff fails to oppose defendant's motion on the merits of the discovery issues raised therein.
The court further notes that plaintiffs's time to file a note of issue, September 24, 2004, as set forth in this court's Compliance Conference Order of May 14, 2004, has long since passed and the plaintiff has neither moved for an extension of time nor has the plaintiff requested a conference to seek and extension of time. Instead, plaintiff's counsel informed the court of the inability to attend a conference scheduled by this court for January 28, 2005. Thereby the court was deprived of an opportunity to resolve the discovery issues raised on this motion.
In sum, plaintiff's conduct has deprived the court of the opportunity to consider whether plaintiff's objections to defendant's discovery requests are justifiable as plaintiff has virtually defaulted by not arguing that he has complied with his discovery obligations. Under these circumstances, the court is compelled to consider that further discovery orders would not cause the plaintiff to comply with his discovery obligations. Plaintiff's failure to file a note of issue in this case is merely indicative of these failures. These failures are especially pronounced in a case such as this where the defendant is unrepresented, yet the defendant has complied with all the obligations imposed by the CPLR discovery statutes and the Orders of this court. Therefore, the court finds in its discretion that dismissal of the complaint is an appropriate sanction for plaintiff's conduct.
Accordingly, it is
ORDERED and ADJUDGED that defendant's motion pursuant to CPLR 3126 is GRANTED, the complaint is DISMISSED, and the Clerk is directed to enter judgment accordingly; and it is further
ORDERED and ADJUDGED that the preliminary injunction granted by this court's Order dated February 17, 2004, is hereby vacated.
This is the decision and order of the court.