Rampersad v New York City Dept. of Educ.
Annotate this CaseDecided on December 1, 2005
Supreme Court, Bronx County
Rampersad, Plaintiff(s),
against
New York City Department of Education and The City of New York, Defendant(s).
8789/2004
Ras Associates, PLLC, by Luis F. Ras, for plaintiff
Ten Bank Street, Suite 650
White Plains, New York 10606
914 289 2909
Rebecca Chan, ACC, for defendants
198 East 161st Street
Bronx, NY 10451
718 590 6215
Paul A. Victor, J.
Plaintiff moves for an order, inter alia, striking the answer of the defendants for failing to provide discovery, for a determination that defendants have waived their right to a deposition, and to compel discovery.
FACTS AND LEGAL ARGUMENT
This action arises out of a slip and fall accident on school premises at P.S. 70 in Bronx County, allegedly caused by a recurring leak from a malfunctioning water fountain. Issue was joined in 2004. Plaintiff served a demand for a bill of particulars, a notice for discovery and inspection, and combined discovery demands on May 11, 2004. A preliminary conference was held August 5, 2004; the Preliminary Conference order provided that defendants would respond to the plaintiff's notice for discovery and inspection, to the extent not duplicative of the other provisions of the Preliminary Conference order. Allegedly, the defendants provided no discovery, and in addition, failed to depose the plaintiff, although she appeared for her deposition on November 10, 2004, the date set forth in the Preliminary Conference Order.
Based on the contention that no discovery was provided, plaintiff moved for discovery sanctions based on the defendants' failure to provide documentary discovery. That motion resulted in an order date January 13, 2005, directing that the defendants produce certain documents, including records relating to the accident. The defendants have appealed the order of January 13, 2005.
Plaintiff then made a second motion (the present motion) to strike the defendants' answer based on the contention that the defendants had failed to provide discovery, and in addition, had waived the plaintiff's deposition by failing to proceed.
The matter was referred to JHO Giamboi on the return date of the motion. After argument, JHO Giamboi issued a report in which he recommended that all depositions be re-scheduled, and that the deposition of plaintiff and the school custodian proceed on March 15, 2005; further, in the [*2]event the defendants failed to proceed, the defendants' answer would be stricken. This Court adopted JHO Giamboi's recommendation, and directed that the parties appear for a compliance conference on March 31, 2005.
In supplemental papers dated March 31, 2005, plaintiff states that at the time scheduled (March 15), the defendants waived plaintiff's deposition. The defendants nevertheless failed to proceed with the deposition of the defendants' witness. The defendants now take the position that the instant motion should be stayed pending the appeal of the order directing document discovery, and in addition, defendants argue that the extreme sanction of striking a pleading is not warranted. Plaintiff argues that the striking of the answer is the appropriate remedy.
LAW RELATING TO 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 circumstance 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 either 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].)
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].)
DISCUSSION
There has been no showing by the defendants that the appeal of the prior order relating to the documents to be provided by defendants has effectuated a stay of the instant motion, or should be construed as effectuating a stay. It is true that CPLR 5519 affords municipal defendants an automatic stay of executory directions set forth in an order or judgment. (Pokoik v. Department of Health Servs., 220 AD2d 13, 641 N.Y.S.2d 881 [2d Dept.1996].)
For example, when an order denies a motion for summary judgment, or strikes a case from the trial calendar, an appeal from that order will not generally stay a trial unless the order specifically directs that a trial take place:
"CPLR 5519 (a) (1), in pertinent part, "stays all proceedings to enforce the judgment or order appealed from pending the appeal ... where ... the appellant ... is the state or of any political subdivision of the state". The plain language of the statute makes it clear that only "proceedings to enforce the judgment or order" are stayed and not all proceedings in the action." Shorten v. City of White Plains, 216 AD2d 344, 345, 631 N.Y.S.2d 519 (2d Dept. 1995). (Emphasis supplied.)
"It also should be clear from the foregoing that the scope of the automatic stay of CPLR 5519 (a) is restricted to the executory directions of the judgment or order appealed from which command a [*3]person to do an act, and that the stay does not extend to matters which are not commanded but which are the sequelae of granting or denying relief."(Pokoik v. Department of Health Servs., supra.) (Emphasis supplied).
The defendants have not shown that the automatic stay pertains to anything other than the directives set forth in the order of January 13, 2005. Nor have the defendants demonstrated a basis for a discretionary stay. The defendants purportedly appealed the earlier order on the eve of the scheduled depositions. No reason appears why the deposition of the building custodian could not proceed, especially as plaintiff was prepared to proceed without having obtained all of the document discovery. The defendants have still not proffered one valid reason why the custodian was not produced.
The defendants have not demonstrated an entitlement to be relieved from the terms of the conditional order. To the extent there has been some degree of compliance with the terms of the conditional order, that compliance constituted only the act of waiving the deposition of the plaintiff an issue that could have been resolved prior to the making of the motion, the holding of the hearing before JHO Giamboi, and the necessity of further appearances and submissions to determine compliance with the conditional order.
Moreover, there was never any issue as to the plaintiff's availability for depositions. The problem is, and was, the failure to produce the defendants' building services staff. That deposition has still not been completed, and no justifiable excuse has been advanced for the failure to provide discovery.
CONCLUSION
The motion is granted to the extent of finding that the conditional order has become absolute.
The answer of the defendants is stricken.
This constitutes the decision and order of the Court.
Dated ................Dec. 1................. 2005 /s/
S.C.
Briefs: Plaintiff's .......... Defendant's ........... Realator's .......... Respondent's .......... Petitioner's ..........
APPEARANCES:
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