Liberty Advanced Med., P.C. v State Farm Mut. Auto. Ins. Co.

[*1] Liberty Advanced Med., P.C. v State Farm Mut. Auto. Ins. Co. 2011 NY Slip Op 51687(U) Decided on September 15, 2011 Dist Ct, Nassau County Ciaffa, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2011
Dist Ct, Nassau County

Liberty Advanced Medical, P.C. a/o NAVINDRA N. SEERAJ, Plaintiff(s),

against

State Farm Mutual Automobile Insurance Company, Defendant(s).



CV-046285-10

 

Friedman, Harfenist, Kraut & Perlstein

Rossillo & Licata, P.C.

Michael A. Ciaffa, J.

The following papers have been considered by the Court

on this motion: submitted September 14, 2011

________________________________________________________________________

Papers Numbered

________________________________________________________________________

Notice of Motion, Affirmation & Exhibits Annexed...........................1 - 2

Affirmation in Opposition....................................................................3

Reply Affirmation................................................................................4

Defendant moves for an order striking plaintiff's complaint and dismissing the action due to plaintiff's failure to provide "stipulated" discovery. The stipulation in question resolved a previous motion by defendant to strike plaintiff's complaint. In pertinent part, it states that plaintiff shall provide defendant with complete and proper responses to defendant's demands for interrogatories, discovery and inspection, expert witness disclosure, and names and addresses of witnesses, within 60 days of the date of the stipulation (March 2, 2011).

The stipulation includes a "self-executing" preclusion provision. With respect to any failures by plaintiff to provide complete and proper responses to defendant's discovery demands, the stipulation provides that plaintiff shall "be precluded from offering such evidence not provided during the pendency of the action."

Plaintiff failed to provide responses to defendant's demands within 60 days of March 2, 2011. Instead, it was not until July 22, 2011— nearly six weeks after defendant served the instant motion — that plaintiff belatedly furnished responses to defendant. [*2]

Plaintiff contends that its "slight delay" in responding "was neither willful nor contumacious." While plaintiff's delay in providing responses to defendant was more than a "slight" one, the Court agrees that the facts at bar do not establish a "willful" or "contumacious" failure to provide discovery. Consequently, the Court denies defendant's request for an order striking the complaint and dismissing the action pursuant to CPLR 3126.

Nevertheless, as the Court of Appeals has "repeatedly emphasized": The failure to comply with deadlines not only impairs

the efficient functioning of the courts and the adjudication

of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to thedelinquent conduct of members of the bar, often to the detriment

of the litigants they represent. Chronic noncompliance with

deadlines breeds disrespect for the dictates of the Civil Practice

Law and Rules and a culture in which cases can linger for years

without resolution...[W]e reiterate that litigation cannot be

conducted efficiently if deadlines are not taken seriously, and

we make clear again, as we have several times before, that

disregard of deadlines should not and will not be tolerated.'"

Gibbs v. St. Barnabas Hosp., 16 NY3d 74, 81, 83 (2010), quoting Andrea v. Arnone, Hedin et al., 5 NY3d 514, 521 (2005).

Importantly, unlike the circumstances presented in Gibbs, the instant case does not involve a failure to provide court ordered discovery. However, the stipulation of the parties, by itself, includes a "self-executing" preclusion provision that plaintiff cannot simply ignore whenever it makes a belated production. Plaintiff's opposition makes no attempt to establish a reasonable excuse for its delay. Nor does plaintiff claim that it attempted to obtain an extension of time to respond, before the 60 day deadline expired. Had it done so, and had defendant refused to agree, a very different balance would be presented. Principles of civility, so critical to civil litigation, would normally dictate the routine granting of a requested extension of time, upon a timely request.

But the facts at bar are different. Defendant initially asked for discovery in December, 2010. Plaintiff ignored the requests at that time. Defendant was forced to make a motion calling the Court's attention to plaintiff's failure. It resulted in a stipulation, dated March 2, 2011, giving plaintiff 60 days more time to respond. Plaintiff ignored the deadline, forcing defendant to make a second motion in June, 2011.

In these circumstances, the service of belated responses on July 22, 2011, do not provide a basis for claiming (as plaintiff does) that defendant's motion is "moot." Rather, the belated nature of the responses, and the absence of excuse for the delay, bring into clear focus the express preclusion provisions of the stipulation.

Accordingly, the Court concludes that the parties should be held to the terms of the stipulation. Plaintiff is hereby "precluded from offering such evidence not provided during the pendency of the action." To the extent defendant seeks further relief from the Court, however, the motion is DENIED. [*3]

So Ordered:

 

District Court Judge

Dated: September 15, 2011