Wilson v City of New York

[*1] Wilson v City of New York 2007 NY Slip Op 51204(U) [16 Misc 3d 1101(A)] Decided on June 14, 2007 Supreme Court, Bronx County Victor, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 14, 2007
Supreme Court, Bronx County

Bonnie Wilson, Plaintiff,

against

City of New York, Defendant.



22054/2004



Appearances:

Plaintiff: Office of Steven Wildstein ( By Michael Maolica)

Defendant: Michael Cardozo, Corporation Counsel

Paul A. Victor, J.

RELIEF REQUESTED

This motion by plaintiff seeks appropriate sanctions for failure of opposing counsel and

his client to fully and timely comply with discovery and disclosure obligations.

BACKGROUND

This matter involved a claim by the plaintiff that she sustained a fall at the Arthur-Alonso Schomberg School in the Bronx on February 6, 2004.Plaintiff now moves for preclusion of testimony by the defendant on the issue of liability.

Plaintiff alleges that since the preliminary conference order was entered into on November 18, 2004, the defendant has adjourned the EBTs of its witness eight times. Plaintiff had previously moved for the answer to be stricken, or to have the defendant precluded. By decision dated November 27, 2006, Justice Friedlander had granted the motion only to the extent that the defendant was compelled to present its witness to testify within 45 days of service of that order with Notice of Entry. The order was served on the defendant on November 30, 2006. According to plaintiff, defendant adjourned the EBT that was then scheduled for January 30, 2007, and that adjournment then precipitated the instant motion. Defendant claims in its opposition papers that it was prepared to proceed on January 30, 2007, and the adjournment was at the behest of the plaintiff.

Because there was a difference between the two parties as to the circumstances surrounding the adjournment of the EBT that had been scheduled for January 30, 2007, this Court issued an interim order on April 16, 2007 for the parties to appear for a hearing. That hearing was held on June 11, 2007. At the hearing, the City's witness conceded that it was the City, not the plaintiff's attorney, who requested the adjournment of the EBT of January 30th.

[*2]

APPLICABLE LAW

All parties and their counsel have an obligation to make good faith efforts to fulfill their discovery and disclose 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 wilful 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 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]. [*3]

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)

DISCUSSION

The dilatory tactics and failure to comply with discovery anddisclosure obligations

demonstrated by the papers submitted in support of, and in opposition to the motion herein, requires 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, as well as send a message to all counsel and the bar generally.

This Court finds that the behavior of counsel for the defendant rises to the level of the "cavalier" disregard for discovery , as the Appellate Division found to have occurred in Figdor . In addition, counsel for defendant has failed to comply, not only with the preliminary conference order but also with the order of Justice Friedlander which granted a generous additional 45 days to comply despite egregious prior delay and failure by the defendant to comply with its discovery obligations. Given the heavy caseload that exists before this Court, such disregard cannot be countenanced and is deserving of an appropriate sanction.

The Court also notes that, in addition to forcing the plaintiffs's counsel to make several motions seeking this outstanding discovery, the City, through the inaccuracies stated in its original motion papers, also compelled the Court to engage in an unnecessary waste of scarce judicial resources in order to conduct a hearing at which the City's witness admitted that the statements contained in the City's original motion papers were wrong. Compelling the Court and opposing counsel to go to such great lengths because of the City's failure to check its records and [*4]represent the truth accurately in its papers, cannot be easily countenanced.

CONCLUSION

The court grants plaintiff's motion to the following extent: the defendant is to be precluded at trial from offering any testimony or evidence on the issue of liability and it must, within 30 days of this order, pay the sum of $1500 to adversary counsel.

This is the order and decision of the Court.

Date_________________________________

Paul A. Victor, J.S.C.