Miller v City of New York
2007 NY Slip Op 50882(U) [15 Misc 3d 1127(A)]
Decided on April 26, 2007
Supreme Court, Bronx County
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Miller v City of New York
Decided on April 26, 2007
Supreme Court, Bronx County
Ronnie Miller and Howard Miller, Plaintiff(s),
The City of New York, Defendant(s).
Plaintiff: Richard J. Katz LLP ( by Jonathan Rapport) 80 Broad Street NYNY 10004
Defendant: Michael A. Cardozo 198 East 161st Street, Bronx NY 10451
Paul A. Victor, J.
This motion by defendant seeks to extend the time for it to comply with this Court's conditional order filed on December 15, 2006 . The plaintiffs cross-move pursuant to CPLR 2221(a) to vacate the 90-day notice served upon them by the Court; and further pursuant to CPLR 3126(3), to strike the answer of the defendant for its alleged repeated failure to fully and timely comply with discovery and disclosure obligations.
PROCEDURAL HISTORY & BACKGROUND
Plaintiff Ronnie Miller, a school teacher, claimed that on March 20, 2003, she was seriously injured when she was attacked by a student at PS 246 in the Bronx.
On December 23, 2003, the plaintiffs served standard discovery demands on the defendant, and requested, among other things, the names and address of witnesses, and the school incident reports pertaining to the alleged underlying incident.
On January 29, 2004, a preliminary conference order required the City to provide plaintiffs with the above-referenced items of discovery within sixty days. Upon failure by the City to comply with that order, plaintiffs' counsel wrote a letter to the City on June 1, 2004, in a good faith attempt to obtain that discovery without the necessity of motion practice. On that same date, plaintiffs' counsel sent a demand to the City to depose Jacqueline Young (the principal of the school) and Erica Noy, (a teacher at the school), both of whom were allegedly employed and present on the date of the incident. The City did not comply.
Upon failure of the City to comply with the above discovery obligations, the plaintiffs [*2]made a motion to compel, which was resolved by order of the Court dated June 13, 2005. That order required that the City to provide plaintiffs with: (1) the incident reports; (2) a copy of the school safety manual; (3) written and oral statements of witnesses; (4) the student file of Anthony Jackson (the alleged student assailant), for an in camera inspection; and (5) the school principal, for a deposition to be held within 15 days of the above in camera inspection of the records of the Anthony Jackson .
On February 27, 2006, the plaintiffs received a notice from the Court, pursuant to CPLR 3216, which mandated the filing of a Note of Issue within 90 days. After the receipt of said 90 day notice, the plaintiffs (having not received any of the above discovery) again moved to compel discovery from the City, and to extend the time to file a Note of Issue. This Court, by order dated June 1, 2006, granted plaintiffs' motion to extend the time to file the Note of Issue to August 15, 2006; and also compelled the City:
"...to provide infant Anthony Jackson's student file for an in camera inspection within 45 days; (and) to produce principal Jacqueline Young for an EBT within 60 days if still employed...."
The order also reserved plaintiff's right to depose other witnesses and cautioned
defendant that failure to comply would result in appropriate sanctions.
Thereafter, the City failed to produce the principal for a deposition, and provided only the "attendance records" of Anthony Jackson for an in camera inspection. No explanation was given as to why no other records, including those relating to this student's prior history and behavior, were not provided. Subsequent to the in camera inspection, the court, sua sponte, issued an order, dated August 10, 2006, which, among other things, again, directed the City to fully comply, within 30 days, with the court's previous order, dated June 1, 2006. When defendant failed to do so, the plaintiffs, once again moved (by motion submitted November 30, 2006) to strike the defendant's answer for failure to comply with all of the above discovery obligations and court orders. By decision and order, dated December 5, 2006 [ entered on December 15, 2006 ], this court held and stated, among other things, that:
"...the documents produced consisted only of student records, and no records relating to 9:30 AM."the alleged assault. In addition, the witness was not deposed, allegedly due to difficulty arranging a date. The Court grants the motion striking the answer of defendant [citation omitted] unless, within 60 days after the service of a copy of this order with notice of entry, the defendant City (1) submits an affidavit by a person with knowledge explaining whether or not additional records exist for Anthony Jackson, and in the event such records exist, produces such records by delivery to part 3 for an in camera inspection;(2) produces the witness for a deposition at a mutually agreeable date, time and place within said 60 day period; and (3) pays costs of $500 [citation omitted]. In the event a mutually agreeable date can not be selected, the witness shall appear for deposition at the courthouse on February 5, 2006 at 9:30 AM."
This final conditional order expired, without compliance by the City, on February 14, 2007.
However, by motion dated February 20, 2007, the City now moves for a further extension of time [*3]to comply with this conditional order. Among other things, the City alleges ( by counsel's affidavit made upon information and belief) that it never received a copy of the notice of entry because the zip code on the address was incorrectly written as "10457" instead of "10451"; and the City claims, therefore, that the compliance period of 60 days has not yet begun to run. In addition, the City claims that it has been diligent in attempting to comply with the December 2006 order; and that it is willing to produce "a Jacqueline Young" to testify "if she is the same woman who was employed as the principal at the school at the time." Moreover, at the oral argument of this motion, the City supplied a copy of an affidavit from one Michael Carter, an alleged Regional Suspension Director, who states that he is unable to find any additional records for the student involved in the alleged assault.
Plaintiffs' cross move to strike defendant's answer; and counsel in essence argues that the motion is disingenuous and frivolous since: (1) prior correspondence between his office and the City reached its intended destination even with that incorrect zip code; and more importantly, (2) it is clear that said notice was received because of his receipt of a check for the $500, which was awarded as costs in that prior order, even before the City made the instant motion.
All parties and their counsel have an obligation to make good faith efforts to fulfill their discovery and disclosure obligations and to resolve all discovery and disclosure disputes, before seeking judicial intervention. Dilatory tactics, evasive conduct and/or a pattern of non-compliance with discovery and disclosure obligations may give rise to an inference of willful and contumacious conduct, and may result in severe adverse consequences and sanctions [See, all cases cited, infra]. "Among the particular types of conduct of a party that have warranted the imposition of sanctions for non-disclosure are: disobedience to a court order compelling disclosure; willful failure to appear for examination before trial; willful failure or refusal to produce witnesses for examination; willful or contumacious refusal to produce documents or materials demanded; failure to respond or to properly answer interrogatories; refusal to exchange or make available to the adverse party medical reports; refusal to give authorization for disclosure of medical reports where privilege waived; refusal to answer questions during deposition; ignoring a notice for discovery and inspection; removal or destruction of property sought to be produced and inspected; willful failure to sign a deposition; falsely denying the possession of documents sought to be produced; refusal to agree to a mutually convenient date for examination; dilatory tactics, evasive conduct and willful obstruction of a discovery proceeding; and belated compliance with disclosure order or conditional preclusion order." [44A NY Jur 2d Disclosure 353].
"The court may also impose sanctions because of an attorney's conduct relating to disclosure such as failure to honor disclosure rules and stipulation between parties on disclosure, deliberate and contumacious delay between the commencement of the action and plaintiff's compliance with the court's discovery orders, or disruptive tactics during the deposition questioning of his client." [44A NY Jur.2d Disclosure S. 353].
In addition, it should be noted, that 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 [*4]monetary and otherwise) which may among other things, severely affect the prosecution or defense of underlying lawsuit.
Sanctions, which have been suggested and upheld by appellate courts, include (without limitation thereto) severe monetary sanctions as well as dismissal of a complaint or an answer. (See e.g., Figdor v. City of New York, 33 AD3d 560, 823 NYS2d.385 [1st Dept., 2006]; [answer struck unless $10,000 sanction paid within 30 days]; Jones v. Green, 34 AD3d 260, 825 NYS2d 446 [1st Dept., 2006] [complaint dismissed because of plaintiff's long continued pattern of non-compliance]; Rampersad v. New York City, 10 Misc 3d 1059A, 809 NYS2d 483, 2005 NY Slip Op 52023 (U) (Victor, J., 2005), aff'd, 30 AD3d 218, 817 NYS2d 20 [1st Dept., 2006] [answer struck for failure to comply with a conditional disclosure order]; Rojas v. City of New York, 27 AD3d 323, 813 NYS2d 64, [1st Dept. 2006]; affirming an order by Supreme Court ,Bronx County [Victor, J, 9/2/05] [answer struck for failure to comply with a conditional disclosure order];Santiago v. City of New York, ___ Misc 3d ___ , 2007 NY Slip Op 50793(U) , 2007 NY Misc Lexis 2503 [Victor, J.,4/15/07]; [complaint dismissed for failure by plaintiff to comply with conditional court orders and discovery obligations].
In Figdor, supra , the First Department modified the order of the court below (which had
denied plaintiff's motion) to the extent of directing that defendant's answer be stricken unless defendant pays plaintiff's attorney $10,000. For emphasis, the Appellate Division also took the opportunity to instruct the IAS courts "to employ a more proactive approach in such circumstances upon learning that a party has repeatedly failed to comply with discovery orders." For added impact, that court emphasized that: "[The IAS courts] have an affirmative obligation to take such additional steps as are necessary to ensure future compliance." (emphasis added)
It must be noted from all of the above, that a pattern of non-compliance with court orders
and/or discovery demands usually results in a final and binding dismissal of an answer or a complaint. It should especially be noted by counsel for plaintiffs that the striking of a complaint may result, not only in the termination of the cause of the action, but also in the inability to revive same. (Andrea v. Armone, 5 NY3d 514, 806 NYS2d 453 .) In the Andrea case, the New York Court of Appeals held that dismissal of an action for failure to comply with a discovery order is a dismissal "for neglect to prosecute the action within the meaning of CPLR 205 (a); [and that], therefore, ... actions filed after the dismissal of previous actions by the same plaintiffs, are not saved by CPLR 205 (a) from the bar of the statute of limitations." (emphasis added).
Compliance with Conditional Orders
A conditional discovery order becomes "absolute" upon the failure of the defaulting party to comply with its terms. (D'Aloisi v. City of New York, 7 AD3d 750, 776 NYS2d 901 [2d Dept. 2004].) However, the failure to comply is not under all circumstances inexcusable, and the party which fails to comply may, upon a proper showing, avoid the effect of the conditional order. In order to avoid the effect of a conditional order, the party seeking relief must demonstrate either (1) compliance with the conditional order, or (2) an excusable default and a meritorious defense. (D'Aloisi v. City of New York, supra ; Frankel v. Hirsch, 2 AD3d 399, 767 NYS2d 863 [2d Dept. 2003]; Weitzenberg v. Nassau County Dept. of Recreation and Parks, 282 AD2d 741, 724 NYS2d 357 [2d Dept. 2001].) [*5]
This court has not hesitated to dismiss an answer and to declare that a conditional order has become "absolute" upon a "defendant's unjustified failure to comply" with its terms. (See, Belton v. Board of Education of the City of New York, N.Y.L.J., May 2, 2005, at 19, col. 3 [Supreme Court, Bronx County]; Carmody Industries Inc. v. TCL Contractors Corp., N.Y.L.J., January 21, 2005, at 20, col. 3 [Supreme Court, Bronx County].)
The Court is not swayed by the City's belated conditional offer to produce a witness and with the City's belated production of the affidavit from Michael Carter. These offers can be characterized as too little, too late. In addition, the Court finds disingenuous the City's claim that it did not receive the notice of entry of the order of December 15, 2006.
The pattern of non-compliance displayed here has not only inordinately delayed the prosecution of this action, it has constrained plaintiffs' counsel to engage in costly and unnecessary motion practice, and has unfortunately resulted in gross waste of the court's limited judicial resources. Defendant has not only failed to comply with the preliminary conference order, and at least three interim orders, but also with the final conditional order which granted it an additional generous period to comply with this Court's previous directives.
The dilatory tactics and the repeated failure by the City to timely comply with discovery and disclosure obligations, and with multiple court orders and notices, which mandated discovery compliance, compels this court to impose a meaningful and appropriate sanction which will deter this type of behavior and insure future compliance.
The court denies the City's motion, and grants the plaintiffs' cross-motion to strike the defendant's answer. In addition thereto, plaintiffs' counsel is granted additional costs and fees in the sum of $2,500, which said sum is to be paid by the defendant within thirty days. This is the order and decision of the Court.
Paul A. Victor, J.S.C.