Cardona v Cobarrubia

[*1] Cardona v Cobarrubia 2008 NY Slip Op 52242(U) [21 Misc 3d 1126(A)] [21 Misc 3d 1126(A)] Decided on October 31, 2008 Poughkeepsie City Ct Moloney, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 31, 2008
Poughkeepsie City Ct

Melissa M. Cardona, Plaintiff,

against

Jorge Cobarrubia, Defendant.



CV-07-2462



Frank Mora, Esq.

Attorney for the defendant

90 Market Street

Poughkeepsie, NY 12601-4014

Melissa M. Cardona.

Plaintiff, pro se

631 N. Terrace Avenue

Mt. Vernon, NY 10552

Katherine A. Moloney, J.

The defendant is seeking an Order to dismiss the complaint, pursuant to C.P.L.R. §3126(3) on the grounds that the plaintiff has wilfully failed to disclose necessary information to which the defendant is entitled. The defendant's motion is supported by the affirmation of Frank M. Mora, Esq., dated August 12, 2008. Plaintiff, proceeding pro se, has submitted opposition to the defendant's motion via "Motion to Continue the Court Proceedings," which is signed by the plaintiff and dated August 11, 2008. In reply and in further support of his motion to dismiss, the defendant has submitted the affirmation of Frank M. Mora, Esq., dated September 2, 2008.

Now, upon reading the notice of motion, the supporting affirmation, the plaintiff's opposition papers, the defendant's reply, and the accompanying exhibits, and due deliberation having been held thereon, this Court determines as follows:

This matter was commenced with the filing of a summons and complaint on July 5, 2007, served upon the defendant on July 7, 2007. The defendant filed his answer and counterclaims on July 27, 2007. Issue was joined on July 27, 2007 relative to the plaintiff's cause of action. The plaintiff did not file an answer in response to the defendant's counterclaims. On September 24, 2007, a preliminary conference was scheduled. The plaintiff failed to appear and the plaintiff's complaint was dismissed. An inquest on papers was ordered relative to the defendant's counterclaims. On October 2, 2007, the defendant filed an affidavit in support of his inquest on the counterclaims. By Notice of Motion dated October 23, 2007, the plaintiff requested that the Court vacate its previous Order which dismissed her cause of action for failure to appear. By Decision and Order dated December 10, 2007, this Court vacated the dismissal and ordered the parties to appear on January 14, 2008 for a preliminary conference. At this conference, discovery was ordered to be completed by April 7, 2008, and the plaintiff was directed to file a note of issue on or before said date. On or about March 18, 2008, the defendant served upon the plaintiff a "Demand for Interrogatories," which the defendant avers have not been answered, which forms the basis for the instant motion. Mora's Affirmation, dated August 12, 2008, ¶ 19. On April 7, 2008, a court conference was held and the matter was adjourned until July 28, 2008 for the completion of discovery and for the plaintiff to file a note of issue. On July 16, 2008, the plaintiff filed with the Court a "Demand for Interrogatories" which was directed to the [*2]defendant's attorney. The plaintiff does not dispute that she has failed to answer the defendant's interrogatories that were served upon her approximately seven (7) months ago. Instead, the plaintiff argues that the Interrogatories posed irrelevant questions. Plaintiff's Motion to Continue the Court Proceedings, dated August 11,2008, ¶ 2. To date, no note of issue has been filed by the plaintiff relative to her cause of action.

The Uniform City Court Act § 1101(a) adopts for the City Courts all of the disclosure procedures set forth in Article 31 of the CPLR . U.C.C.A. § 1101(a). Article 31 of the C.P.L.R. is to provide disclosure of all evidence material and necessary in the prosecution or defense of an action. An Order to compel disclosure is appropriate where a party fails to respond to or comply with any request or demand made pursuant to Article 31 of the Civil Practices Rules and Law. C.P.L.R. § 3124. Here, the defendant does not seek an order to compel, rather outright dismissal.

This Court notes that a court order, such as one under CPLR § 3124 which directs disclosure is not a condition precedent to the invocation of C.P.L.R. § 3126. SIEGEL, NY Practice, 4th ed., p. 608.

If a party fails to comply with a court order and frustrates disclosure, it is within the trial court's discretion to dismiss the complaint. Kihl v. Pfeffer, 94 NY2d 118 (1999). The Kihl court held that "If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore the court orders with impunity. Indeed, the Legislature, recognizing the need for courts to be able to command compliance with their disclosure directives, has specifically provided that a court may take such orders as are just,' including dismissal of an action." Kihl, supra at 123. Dismissing a complaint pursuant to C.P.L.R. § 3126(3) for a party's failure to comply with court-ordered discovery is a drastic remedy that should only be granted where the party's conduct is willful, contumacious, or in bad faith. Wilson v. West Hempstead Generals Football Club, Inc., et al., 286 AD2d 438 (2d Dept. 2001).

The defendant urges this Court to hold the plaintiff to the timeliness set forth in the C.P.L.R and dismiss the complaint arguing that her failure to disclose information material and necessary to his defense is willful. Defendant's Notice of Motion, dated August 12, 2008.

In New York, a self-represented party is entitled to prosecute or defend a civil action with few statutory limitations or exceptions. C.P.L.R. § 321 (a). Judges may (but are not obliged) to consider the self-represented status and capacity of the litigant when determining how to exercise matters of judicial discretion. While pro se litigants have no greater legal rights, they are often afforded considerable latitude. See generally, Child Welfare Admin v. Jennifer A., 218 AD2d 694 (2d Dept. 1995). On the other hand, pro se litigants are subject to the same rules of civil procedure as attorneys. See, Lazich v. Lazich, 189 AD2d 750 (2d Dept. 1993). Thus, a litigant appearing pro se proceeds at her own peril because she, "acquires no greater right than any other litigant and such appearance may not be used to deprive defendants of the same rights enjoyed by other defendants." Roundtree v. Singh, 143 AD2d 995, 996 (2d Dept. 1988); Banushi v. Lambrakos, 305 AD2d 524 (2d Dept. 2003); Kitch v. Markham, 174 Misc 2d 611, 618 (Westchester County 1997).More specifically, pro se litigants cannot wantonly disregard scheduled court dates and procedures of which they have been put on notice, especially when [*3]other parties would be unduly prejudiced or inconvenienced. Boltz v. Ascolesi, 16 Misc 3d 133A (App. Term, 2d Dept. 2007). This is because litigation cannot be conducted efficiently if deadlines are not taken seriously, and thus a disregard for deadlines will not and should not be tolerated by the courts. Andrea v. Arnone, 5 NY3d 514 (2005).

Here, the plaintiff failed to appear at the initial preliminary conference held on September 24, 2007 despite being afforded timely notification of the court appearance, which was sent to the address provided to the Court. Notwithstanding this, upon application of the plaintiff, this Court excused the plaintiff absence and vacated its Order which had previously dismissed her complaint for failing to appear. Thereafter, on January 14, 2008, the Court ordered that the parties complete discovery and that the plaintiff file her note of issue on or before April 7, 2008. Subsequent to that court appearance, in March 2008, the defendant served a Demand for Interrogatories upon the plaintiff. Despite the defendant's Demand for Interrogatories and the date set by the Court to complete discovery, the plaintiff failed to comply with the Court's orders and failed to answer the defendant's discovery demands. Yet, this Court again excused the plaintiff's failure to strictly adhere to the Court's discovery deadline as well as this Court's specific order to file a note of issue. Instead, the Court gave the parties an additional three and one-half (3 ½) months [until July 28, 2008] to complete discovery and for the plaintiff to file her note of issue. Despite being given this additional time, July 28, 2008 passed and no note of issue was filed and no Response to the Interrogatories was served. On August 13, 2008, the defendant filed the instant motion, seeking to dismiss the complaint on the grounds that the plaintiff has willfully refused to obey this Court's Orders and has refused to answer its Interrogatories, which seek material and necessary information to the defense of the action. To date, and in spite the defendant filing the instant motion, plaintiff has not answered the Interrogatories, nor has plaintiff filed a note of issue as directed, nor has she offered a reasonable excuse for her failure to comply. Over sixteen (16) months have past since issue was joined in this matter, yet discovery is not completed and a note of issue has not been filed.

The plaintiff's court papers and court appearances have conveyed to this Court that plaintiff is an educated, professional woman who possesses a good understanding of the Court system and its operations, and has demonstrated full comprehension to this Court's directives at each appearance. Nevertheless, her conduct in failing to comply with numerous court orders directing disclosure or to offer a reasonable excuse for her lack of compliance rises to the level of willful and contumacious conduct. See, Wilson v. West Hempstead Generals Football Club, Inc., et al., supra.

This Court notes that the plaintiff indirectly sets forth that her lack of compliance was due to the emergency C-section she underwent and the six (6) weeks of bed rest she was to instructed to follow. While this Court is sympathetic to the plaintiff's medical emergency, and finds that defendant's reply to plaintiff's medical condition to be crass, the Court nevertheless finds it irreconcilable that plaintiff did not and continues to not answer the Interrogatories, yet she was able to file her own Demand for Interrogatories and serve it upon the defendant just three (3) weeks after the birth of her premature baby. Moreover, on July 28, 2008, the plaintiff initiated the filing of a voluminous package of papers (separated and organized) wherein she appears to [*4]try to substantiate her claims on the underlying action. Yet, while she was able to undertake these tasks, she inexplicably failed and continues to fail to answer the Interrogatories or file a note of issue. Ordinarily, the plaintiff's medical condition would have provided a reasonable excuse for lack of compliance for a period of time, but it certainly would not serve to excuse compliance indefinitely as plaintiff seems to rely. As such, this Court rejects the plaintiff's medical condition as the cause for her continued lack of compliance. Rather, the Court finds that during the course of this litigation, the plaintiff has chosen to selectively undertake only that which tends to benefit her claim. This conduct is in defiance of this Court's Orders and such disregard for deadlines will not be tolerated. See, Andrea v. Arnone, supra.

Based upon the foregoing, this Court finds that the plaintiff has intentionally, willfully, and contumaciously failed to comply with the defendant's Demands for Interrogatories, and has impugned the commands of this Court.

Therefore it is,

ORDERED, the defendant's motion to dismiss the complaint is granted unless the plaintiff serves a response to the defendant's Interrogatories within seven (7) days of the date of this Order.

SO ORDERED.

All parties are directed to appear before this Court on November ___, 2008 at 9:00 A.M. for further proceedings.

Dated: October 31, 2008___________________________

Poughkeepsie, New YorkKatherine A. Moloney

City Court Judge

To: