Bakraei v Exclusive PS Unisex Hair Stylists Co.

[*1] Bakraei v Exclusive PS Unisex Hair Stylists Co. 2009 NY Slip Op 51964(U) [25 Misc 3d 1203(A)] Decided on September 9, 2009 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 9, 2009
Supreme Court, Kings County

Farinz Bakraei, Plaintiffs,

against

Exclusive PS Unisex Hair Stylists Co., d/b/a EXCLUSIVE UNISEX HAIR STYLISTS, and PINKHUS SHAMUELOV, Defendants



5103/08



For Plaintiff:

Bushell, Sovak, Ozer, Gulmi LLP

60 East 42nd Street, Suite 2925

NY, NY 10165

212-949-4700

For Defendant:

Dinara Maylov & Assoc

2801 Emmons Avenue

Brooklyn, NY 11235

718-339-7777

Francois A. Rivera, J.

Plaintiff moves by notice of motion for an order pursuant to CPLR §3124 compelling compliance with a prior court order, an order pursuant to CPLR §3126 striking defendants' answer and for an order of sanctions pursuant to CPLR §3126 and/or 22 N.Y.C.R.R. §130-1.1 awarding reasonable attorneys' fees and/or sanctions. Defendants oppose.

BACKGROUND

On February 28, 2008, plaintiffs commenced the instant action against defendants by filing a summons and verified complaint with the Kings County Clerk's Office. The complaint contains forty-nine allegations of fact to support four causes of action. [*2]Plaintiff alleges that she was injured by defendants during a bikini wax procedure at their place of business. Issue is joined.

Plaintiff's sought compliance with three prior court orders regarding their discovery demands. On November 14, 2008, this court granted plaintiff's motion to compel. On December 15, 2008, this court scheduled compliance with discovery in a preliminary conference order. On February 20, 2009, this court granted plaintiff's motion to comply with the November 14, 2008 order within fourteen days. None of the orders with complied with. The plaintiff now moves to strike defendants' answer, for attorney's fees and/or financial sanctions.

Defendants' counsel contends he could not locate his clients.

MOTION PAPERS

Plaintiff's motion consists of an attorney's affirmation in support to compel compliance with the court's November 14, December 15 and February 20 orders and for sanctions; and an affirmation of good faith. Plaintiffs motion consists of three exhibits labeled A, B, and C. Exhibit A is a copy of the court's February 20, 2009. Exhibit B is a copy of plaintiff's affirmation in support of her motion to compel compliance with the court's November 14 order and for sanctions. Within exhibit B, plaintiff submits four sub-exhibits labeled a though d. Exhibit B (a) is an affirmation of good faith in support of plaintiff's motion to compel the production of documents and things and affirmation of good faith dated December 23, 2008. Exhibit B (b) is another affirmation in support of plaintiff's motion to compel production of documents and things and affirmation in good faith, dated September 4, 2008, a copy of the summons and complaint, a copy of a letter dated March 17, 2008, a copy of a letter dated April 29, 2008, a stipulation to extend discovery, dated April 29, 2008, a copy of the ambulance call report, police report, aided report, and medical records; plaintiffs' documents request, a letter dated July 28, 2008, a letter dated August 15, 2008, and a letter dated August 25, 2008. Exhibit B [c] is the court's November 14, 2008 order. Exhibit B [d] is the preliminary conference order . Exhibit C is a letter dated March 16, 2009 and a copy of the court's order to comply dated February 20, 2009. Plaintiff also submitted a memorandum of law in support of the instant motion.

Defendants' opposition contains an affirmation of counsel.

DISCUSSION

CPLR §3216, states:

If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are [*3]just, among them: 1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or 2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or 3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.

Although actions should be resolved on the merits whenever possible (see Catarine v Beth Israel Med Ctr., 290 AD2d 213 [2002], a court may strike a pleading as a sanction against a party who refuses to obey an order for disclosure [see CPLR: 3126 [3]]. A court may strike an answer only when the moving party establishes a "clear showing that the failure to comply is willful, contumacious or in bad faith" (Palmenta v Columbia Univ., 266 AD2d 90 [1999]). The burden then shifts to the nonmoving party to demonstrate a reasonable excuse (Furniture Fantasy v Cerrone, 154 AD2d 506 [1989].

Disobeying three consecutive orders directing the defendants to comply with discovery constitutes precisely the sort of dilatory and obstructive, and thus contumacious, conduct warranting the striking of the answer (Kutner vFeiden, Dweck & Sladkus, 223 AD2d 488 [1996]. At no time did these defendants offer a reasonable excuse for their repeated failure to comply. The fact that their whereabouts were unknown is no bar to plaintiffs' requested sanction (see Rocco v KCL Protective Servs, 283 AD2d 317 [2001]. Counsel's bald statement that reasonable good faith efforts had been made to locate the defendants, including the hiring of an investigator to assist in the search, is devoid of detail and therefore insufficient. Counsel failed to submit an affidavit from the purported investigator detailing what efforts, if any, the investigator made to locate the defendants. Nor did counsel specify any other efforts made to ascertain their location (Reidel vRyder TRS, Inc., 13 AD3d 170, Jackson v City of New York, 185 AD2d 768 [1992]. The fact that defendants have disappeared or made themselves unavailable provides no basis for denying a motion to strike their answers, particularly in the face of continued defaults of court ordered discovery ( see Foti v Suero, 97 Ad2d 748 [2nd Dept 1983]; Bates v Baez, 229 AD2d 382 [2nd Dept. 2002]).

Plaintiff's motion to strike defendants' answer is granted.

The court has broad discretion to determine whether to impose sanctions against the defendants for failing to comply with discovery (see CPLR §3126; Riley v ISS Inern. Service System, 304 AD2d 637 [2nd Dept. 2003]). The court, therefore, denies plaintiff's motion for attorney's fees finding that the striking of defendants' answer is enough of a [*4]sanction.

The foregoing constitutes the decision and order of the court.

_______________________

J.S.C.