Opinion
No. 101555/06.
06-27-2014
VERIZON NEW YORK, INC. v. CON EDISON, INC. and Stepmar Contracting, Inc.
David Hoffberg, Esq., Elmsford, for Plaintiff. Richard Babinecz, Esq., Consolidated Edison of New York, Inc., New York, for Defendant.
David Hoffberg, Esq., Elmsford, for Plaintiff.
Richard Babinecz, Esq., Consolidated Edison of New York, Inc., New York, for Defendant.
Opinion
NANCY M. BANNON, J.
The following papers were read on this motion by the plaintiff for leave to file a late note of issue pursuant to CPLR 2004 and cross-motions by each of the defendants Con Edison and Stepmar Contracting to dismiss the complaint pursuant to CPLR 3126 upon plaintiff's failure to provide discovery.
Notice of Motion/Order to Show Cause–Affirmation–Affidavit(s)
| Exhibits- | No(s). 1 |
|---|---|
| Answering Affirmation(s)-Affidavit(s)-Exhibits- | No(s). 2, 3 |
| Notice of Cross–Motion of Defendant Con Edison/Order to Show Cause–Affirmation–Affidavit(s)–Exhibits– | No(s). 4 |
| Answering Affirmation(s)-Affidavit(s)-Exhibits- | No(s). 5 |
| Replying Affirmation–Affidavit(s)–Exhibits– | No(s). 6 |
| Notice of Cross–Motion of Defendant Stepmar Contracting/Order to Show Cause–Affirmation–Affidavit(s)–Exhibits | No(s). 7 |
| Answering Affirmation(s)-Affidavit(s)-Exhibits- | Nos(s). 8 |
| Replying Affirmation–Affidavit(s)–Exhibits– | No(s). 9 |
In this action to recover the cost of damage to the plaintiff's facilities allegedly caused by the defendants' negligence, the plaintiff moves for leave to file a late Note of Issue pursuant to CPLR 2004 and the defendants move separately, inter alia, to dismiss the complaint pursuant to CPLR 3126 upon the ground that the plaintiff has failed to comply with discovery demands.
The damage to the plaintiff's “telecommunication cables, equipment, poles and facilities” is alleged to have occurred on February 3, 2003. The action was commenced on or about January 31, 2006, and issue was joined when defendants Con Edison, Inc. and Stepmar Contracting, Inc. interposed answers several months later. Subsequently, this court issued at least five discovery orders, dated from December 2009 through June 2012, all of which directed the plaintiff to provide certain discovery and file a Note of Issue.
Specifically, the order dated January 13, 2011, directed the plaintiff to file a Note of Issue on or before February 28, 2001, with the notation “Last Deadline, No extensions.” The plaintiff failed to do so. The order dated May 10, 2011, provided further deadlines for discovery and the Note of Issue, and the plaintiff failed to comply. The order dated August 2, 2011, directed the plaintiff to file a Note of Issue by October 15, 2011, and stated “NO EXTENSIONS.” The plaintiff did not file a Note of Issue. The order dated March 13, 2012, directs the plaintiff to respond to Con Edison's discovery demands, including a “defective pair report”, by April 26, 2012, and to file a Note of Issue by June 29, 2012. That was not done. The most recent order, dated June 5, 2012, again directs the plaintiff to provide the very same discovery and file a Note of Issue by August 31, 2012, after which is written “NO FURTHER ADJOURNMENTS.” As indicated by the papers now before the court on the motions, the plaintiff did not comply with these directives. Rather, the plaintiff delayed almost two more years, and now seeks leave of this court to file a late Note of Issue, representing that all discovery is complete, and offering no explanation for the delay.
CPLR 2004 provides that “the court may extend the time fixed by any statute rule or order from doing any act, upon such terms as may be just and upon good cause shown. ” (emphasis added). Here, the plaintiff seeks an extension of time to file a Note of Issue from the June 29, 2012, date. However, the moving papers fail to establish, or even allege, any “good cause” for granting that relief. See Tewari v. Tsoutsouras, 75 N.Y.2d 1 (1989) ; Grant v. City of New York, 17 AD3d 215 (1st Dept.2005). Indeed, the plaintiff perfunctorily states only that the action was commenced in 2006, issue was joined by June 2006, and discovery has been completed, without further detail. While a note of issue may be filed at any time after joinder of issue (see CPLR 3402 ), the plaintiff makes no attempt at all to explain why it failed to do so for nearly eight years. The five intervening discovery orders do not support the plaintiff's request since they were all issued years before the instant motion and all direct the plaintiff to provide certain discovery and file a Note of Issue, which was never done. Furthermore, a Note of Issue may not be filed when there is outstanding discovery since counsel would be misrepresenting a material fact in the certificate of readiness. See 22 NYCRR 202 .21(e); Herbert v. Sivaco Wire Corp., 1 AD3d 144 (1st Dept.2003). For those reasons, the plaintiff's motion must be denied.
The court notes that CPLR 3216 authorizes the court to dismiss a complaint for failure to prosecute upon its own motion, since, under the circumstances presented, the series of court orders may be considered to satisfy the 90–day notice requirement of CPLR 3216(b)(3). See Petersen v. Lysaght, Lysaght & Kramer, 47 AD3d 783 (2nd Dept.2008) ; Dhaliwal v. Long Boat Taxi, Inc., 305 A.D.2d 449 (2nd Dept.2003). However, the court need not dismiss on that ground as the defendants have demonstrated their entitlement to dismissal of the complaint under CPLR 3126.
CPLR 3126 authorizes the court to sanction a party who “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed.” The court finds that the defendants have established that plaintiff's recalcitrance in providing discovery was “willful, contumacious or in bad faith.” Palmenta v. Columbia Univ., 266 A.D.2d 90, 91 (1st Dept.1999). The plaintiff's failure to comply with five different discovery orders, three of which preclude any further extension, constitutes “precisely the sort of dilatory and obstructive, and thus contumacious, conduct” (Kutner v. Feiden, Dweck & Sladkus, 223 A.D.2d 488, 489 [1st Dept.1998] ) warranting an order striking the complaint pursuant to CPLR 3126(1). See CDR Creances S.A. v. Cohen, 104 AD3d 17 (1st Dept.2012) ; Figdor v. City of New York, 33 AD3d 560 (1st Dept.2006) ; Reidel v. Ryder TRS, Inc., 13 AD3d 170 (1st Dept.2004). The court can infer willfulness from repeated failures to comply with court orders or discovery demands without a reasonable excuse. See LaSalle Talman Bank, F.S.B. v. Weisblum & Felice, 99 AD3d 543 (1st Dept.2012) ; Perez v. City of New York, 95 AD3d 675 (1st Dept.2012) ; Figiel v. Met Food, 48 AD3d 330 (1st Dept.2008) ; Ciao Europa, Inc. v. Silver Autumn Hotel Corp., Ltd., 270 A.D.2d 2 (1st Dept.2000).
For these reasons, and upon the foregoing papers and the oral argument by the parties, it is
ORDERED that the plaintiff's motion for leave to file a late Note of Issue is denied, and it is further,
ORDERED that the cross-motion of defendant Con Edison, Inc. is granted and the complaint is dismissed as against that defendant, and it is further,
ORDERED that the cross-motion of defendant Stepmar Contracting, Inc. is granted and the complaint is dismissed as against that defendant, and it is further,
ORDERED that the Clerk shall enter judgment accordingly, dismissing the complaint in its entirety.
This constitutes the Decision and Order of the Court.