Perez v City of New York
Annotate this CaseDecided on May 17, 2007
Supreme Court, Bronx County
Jaime Perez, an infant by his Mother and Natural Guardian, Nancy Torres, and Nancy Torres, Individually, Plaintiff(s),
against
The City of New York, Defendant(s).
13084/2004
Plaintiff: Jonathan Rapport, 80 Broad Street, NYNY 10004
Defendant: Michael Cardozo, Corporation Counsel
Paul A. Victor, J.
This motion by plaintiffs seeks appropriate sanctions for failure of opposing
counsel and defendant to fully and timely comply with discovery and disclosure obligations.
BACKGROUND
This case involves a claim by the infant plaintiff that he was assaulted by other students at City public school on January 9, 2003.
This is the third motion made by plaintiff with respect to discovery and disclosure from the defendant. On November 18, 2004 a preliminary conference was held, and the order required the City to provide the records of the plaintiff's alleged assailants, the Board of Education incident reports, the names and addresses of any witnesses; and it further directed that the depositions of the parties were to be held on April 21, 2005. After the preliminary conference, the plaintiff served additional discovery demands on the City, for such items as names of witnesses, party statements, and other standard items of discovery. The City, in its response to these demand, states that it has supplied the materials required by the preliminary conference order, and that the later discovery demands are superseded by the preliminary conference order. In any event, the depositions scheduled for April 21, 2005 were not held. [*2]
Plaintiff's counsel moved, by motion dated March 1, 2005 to compel compliance with the preliminary conference order and subsequent demands. In its response to the motion, the City cross-moved to dismiss, claiming it was not a proper party to the action. This motion was denied by Justice Walker on September 13, 2005. In that order, Justice Walker also stated that the City's answer would be stricken unless it complied with the preliminary conference order within 60 days; and an appeal was taken therefrom by the City of New York.
Thereafter, the City adjourned the depositions four more times, and plaintiff's counsel again moved to have their answer stricken. The City responded that since they had appealed from Justice Walker's order, they believed that a stay was in effect. This Court , in a decision dated June 16, 2006, denied plaintiff's motion to strike the answer, and gave the City 45 days from the date of that order to produce a witness for a deposition. The Court also found that there was no "stay" in effect as a result of the pending appeal.
The instant motion was made on December 22, 2006, well after the 45 days had passed. The City offers no reason why the deposition was not held pursuant to the terms of the order of June 16th. They do allege that their witness, Tracy Abraham, is now available to testify. They further claim that between the date that the instant motion was made, and the date it was formally submitted, they called plaintiffs counsel 4 times to arrange for depositions, but did not receive any return calls.
APPLICABLE LAW
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; wilful 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 [*3]compliance with the court's discovery orders, or disruptive tactics during the deposition questioning of his client." [44A NY Jur.2d Disclosure §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 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 (Paul A. Victor, J), entered 9/2/05 [answer struck for failure to comply with a conditional disclosure order].
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 may result 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 [2005].) 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).
As stated by Chief Judge Kaye in Kihl v. Pfeffer, 94 NY2d 118 (1999), "If the credibility of court orders and the integrity of our judicial system are to be maintained , a litigant cannot ignore 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 make such orders...as are just', including dismissal of an action. Finally, we underscore that compliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests meaningfully".
[*4]
DISCUSSION
Failure by counsel to abide by disclosure and discovery obligations results not only in a
waste of scarce judicial resources, it results in a further inordinate delay of the ultimate trial. Because of circumstances beyond the control of this Court, including the large number of cases pending against the City of New York, litigants in Bronx County are already burdened with too long a waiting period for trial beyond the filing of a Note of Issue. In the City Part in Bronx County, the rules provide that a Note of Issue cannot be filed until all discovery is complete; and thus a case cannot even begin to mature for selection of a trial date until a Note of issue has been filed. Failure to expeditiously provide discovery and disclosure not only delays the filing of a Note of Issue, it often results in the prejudicial unavailability of witnesses and evidence to the detriment of the parties. A sage correctly opined that "Justice delayed often results in justice denied.." Therefore, no longer will unreasonable delays be allowed without the imposition of severe consequences.
This Court has consistently sought the voluntary cooperation of the plaintiff and defense bar to try to improve the efficiency of the operation of the City Part. In the past, this Court has attempted, without the threat or imposition of sanctions, to rely on the obligation of parties to provide pre-trial discovery and to timely ready their cases for trial. Over the last several years the Court has encouraged the parties to avoid motion practice and to seek to expedite their discovery obligations via stipulation, rather than by judicial intervention. Although some have complied, some ( too many) have not, and there is a need now to change the culture. The Court has been left with no choice, and is now constrained to apply judicial pressure with monetary and other penalties to ensure that parties comply with their obligation to provide meaningful and timely discovery and disclosure.The conduct of the City herein appears to be even more egregious than that in Figdor, supra ,.
since the City not only failed to abide by the conditional self-executing order issued
by Justice Walker (which expired on November 13, 2005); but also with the order of this Court dated June 16, 2006, which among other things, granted a generous additional 45 days to comply.
That order expired in August of 2006. The City's claim of readiness now (made only after the
plaintiff was required in December of 2006 to make a third motion) is too late.
The defendant's dilatory tactics and failure to comply with its discovery and
disclosure obligations compels this court not only to impose a monetary sanction (to punish the offender and to reimburse the movant for the added motion practice and/or court appearances), but also to provide an order with sufficient "teeth" to insure future compliance. This order and decision should also serve as a message to all counsel and the bar generally that this type of negligent and/or willful gamesmanship will no longer be tolerated.
CONCLUSION
The court grants plaintiff's motion to strike the defendant's answer and ,in addition thereto, the defendant is directed to pay the sum of $1,500 to plaintiff's counsel, within 60 days of service of a copy of this order.[*5]This is the order and decision of the Court.
Date_________________________________
Paul A. Victor, J.S.C.
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