Dutchess Truck Repair Inc. v Boyce
Annotate this CaseDecided on September 21, 2012
Supreme Court, Dutchess County
Dutchess Truck Repair Inc., RALPH PAGANO and JOSEPH MORI, Plaintiffs,
against
Joe Boyce, Individually and Doing Business as TRANS STAR ENTERPRISES, and LEE NIZNIK d/b/a LEES AUTOBODY, Defendants.
9406/08
NORMAN A. KAPLAN, ESQ.
Attorney for Plaintiffs
111 Great Neck Road
Great Neck, New York 11021
PASQUALE SOMMELLA, ESQ.
THE SARCONE LAW FIRM, PLLC
Attorneys for Defendant
JOE BOYCE, Individually and
Doing Business As TRANS STAR ENTERPRISES,
TRANS STAR ENTERPRISES, INC.
222 Bloomingdale Road, Suite 308
White Plains, New York 10605
EVA WARREN, ESQ.
Attorney for Defendant
LEE NIZNIK
1076 Main Street, Suite 101
Fishkill, New York 12524
James D. Pagones, J.
Defendant Joe Boyce moves for an order: (1) pursuant to 22 NYCRR 202.21(e) striking the plaintiffs' note of issue; (2) dismissing the plaintiffs' action for failure to prosecute; and, (3) precluding the plaintiffs from offering evidence at trial with respect to information demanded and, upon preclusion, dismissing the plaintiffs' complaint. The plaintiffs oppose the [*2]instant application.
Defendant Boyce's most recent application relates primarily to his preceding motion to compel compliance with outstanding discovery demands. On July 6, 2011, defendant Boyce served on the plaintiffs two separate notices to produce. Both notices to produce relate to documents demanded at two of the plaintiffs' prior depositions. As a result of the plaintiffs' inexplicable failure to respond to the outstanding notices, defendant Boyce moved this court for an order of preclusion or, alternatively, to compel the plaintiffs to serve a response. By decision and order dated December 14, 2011, this court granted defendant Boyce's motion to the extent that the plaintiffs were directed to comply with the outstanding notices to produce, without objection, within ten days of the date of the decision and order. The court further directed the plaintiffs to file a note of issue within thirty days of the date of the decision and order. Finally, it was noted that adjournments would only be granted with leave of the court.
Notwithstanding the unequivocal direction of the court, the deadline by which the plaintiffs were directed to file their note of issue was inexplicably disregarded. As a result, on March 26, 2012 this court issued a 90-day demand pursuant to CPLR R3216 demanding that the plaintiffs resume prosecution and file a note of issue within ninety days. The demand cautioned the plaintiffs that their failure to timely file the note of issue will serve as a basis for the dismissal of their complaint.
On the eve of the expiration of the ninety day period, the plaintiffs filed a note of issue and certificate of readiness. The certificate of readiness represented that there were no outstanding requests for discovery but for the plaintiffs' pending appeal on a discovery issue relating to the taking of the defendant's deposition. Defendant Boyce now moves to vacate the note of issue and dismiss the plaintiffs' complaint based on the plaintiffs' repeated failure to comply with outstanding discovery demands. In particular, defendant Boyce asserts that the plaintiffs remain in violation of this court's December 14, 2011 order through their continued failure to respond to the outstanding notices to produce.
The Court of Appeals has repeatedly noted that "[l]itigation cannot be conducted efficiently if deadlines are not taken seriously...[and] that disregard of deadlines should not and will not be tolerated." (Andrea v. Arnone, Hedin, Casker, Kennedy & Drake, Architects and Landscape Architects, P.C., 5 NY3d 514, 521 [2005].) Here, it is apparent that the plaintiffs have habitually failed to act with expediency in moving this case forward and there is ample support in the record for the dismissal of the plaintiffs' complaint. On at least three separate occasions, defendant Boyce was required to file motions [*3]to attempt to secure the plaintiffs' compliance with outstanding discovery demands. One motion was resolved by the parties and withdrawn prior to the court's issuance of a decision and order. The remaining two motions were both resolved by orders of the court directing the plaintiffs to comply with outstanding discovery demands. While it appears that the plaintiffs ultimately complied with the first order, there can be no bona fide dispute that the plaintiffs failed to supply responses to the outstanding demands and remain in violation of the December 14, 2011 order.
Additionally, the plaintiffs have repeatedly failed to comply with this court's directives to file a note of issue. Pursuant to a preliminary conference stipulation and order dated October 29, 2009, the plaintiffs were directed to file their note of issue by June 23, 2010. At a compliance conference held on April 27, 2010, counsel for the plaintiffs represented that additional time was needed to respond to the defendant's outstanding discovery demands. Accordingly, the plaintiffs' deadline was extended to October 15, 2010. On October 14, 2010, the court was contacted by plaintiffs' counsel who requested an additional adjournment of the note of issue deadline. Plaintiffs' counsel again represented that additional time was needed to comply with outstanding discovery demands, although he was unable to articulate any explanation as to why the plaintiffs had been unable to fully comply with the demands since the date of the compliance conference. The adjournment request was denied and the plaintiffs filed their note of issue. Subsequently, the defendants moved to vacate the note of issue due to the outstanding discovery demands. The defendant's motion was granted, the note of issue was struck and the plaintiffs were given a deadline by which they were required to supply the outstanding discovery demands.
Thereafter, this court issued an order requiring the plaintiffs to file a note of issue on or before January 13, 2012. When the plaintiffs failed to comply with the court's order, this court issued 90-day demand pursuant to CPLR R3216 on March 26, 2012. The plaintiffs responded to the court's 90-day demand by serving a certificate of readiness accompanying their note of issue which falsely attested to the completion of discovery. Plaintiffs had previously been directed by court order to respond without objection to defendant Boyce's outstanding notices to produce. Plaintiffs failed comply with the court's directive and said responses remained outstanding at the time when the note of issue and certificate of readiness were filed. In fact, it appears from the submissions of the parties that the plaintiffs have perpetuated their failure to supply the required responses and to date remain in violation of this court's prior order. The plaintiffs have failed to offer any tenable excuse for their nine [*4]month delay in complying with the court's directive.
Clearly, the certificate of readiness filed by the plaintiffs was knowingly, wrongfully and willfully submitted as a tactical matter to stave off dismissal. (Yona v. Beth Israel Med. Ctr., 285 AD2d 460 [2nd Dept. 2001].) While the court vacated the plaintiffs' initial note of issue filed on October 14, 2010 based on incomplete discovery, it cannot continue to turn a blind eye to the plaintiffs' repeated wrongful filings and pattern of persistent neglect. The continued misuse of process is indicative of the plaintiffs' bad faith. (Id. at 461). Moreover, the plaintiffs' protracted and repeated failure to provide ordered discovery demonstrates that their failure was willful and contumacious. (Id. at 461). Accordingly, defendant Boyce's motion is granted and the note of issue is vacated as a nullity and the plaintiffs' complaint is dismissed pursuant to CPLR R3216.
The Court read and considered the following documents upon this application:
PAGES NUMBERED
1.Notice of Motion.........................1-2
Affirmation-Sommella................1-16
Exhibits............................A-L
2.Affidavit in Opposition-Mori.............1-7
Exhibit.............................1
Supplemental Exhibits...............G-I
3.Reply Affirmation-Sommella...............1-13
Exhibits............................A-D
The foregoing constitutes the decision and order of the Court.
Dated:Poughkeepsie, New York
September 21, 2012
ENTER
HON. JAMES D. PAGONES, A.J.S.C.
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