Dahl v Toyota Indus. Equip. Mfg., Inc.
Annotate this CaseDecided on December 10, 2012
Supreme Court, Ontario County
Kaycie Dahl, Individually and as Administrator with Letters of Limited Administration of the ESTATE OF DUANE H. DAHL, Plaintiffs,
against
Toyota Industrial Equipment Manufacturing, Inc. and TOYOTA MATERIAL HANDLING U.S.A., INC.; CASCADE CORPORATION; SWIFTLIFT INC.; JOHN DOE and/or JOHN DOE, INC., Defendants.
103106
Craig J. Doran, J.
This case arises out of a workplace accident which occurred on November 8, 2008 at Third-Party Defendant Pactiv Corporation's (Pactiv) manufacturing facility in Canandaigua, NY It is alleged that Duane Dahl was injured when a die fell upon him as it was being lowered by a forklift. An action was commenced in July, 2009 by plaintiff. Defendant Swiftlift, Inc. (Swiftlift) subsequently commenced a third-party action against Pactiv for negligence, indemnification, and breach of contract for failing to procure insurance for Swiftlift.
During the pendency of this action, Pactiv moved for an order to compel Swiftlift to provide [*2]answers to Pactiv's interrogatories. Swiftlift did not serve any papers in response to the motion, nor did Swiftlift appear at oral argument of the motion on June 15, 2012. The Court issued an order which required Swiftlift to respond to Pactiv's interrogatories on or before 3:00 p.m. on June 20, 2012. The order further provided that in the event Swiftlift failed to do so, it would be precluded from offering evidence at trial relating to the items and particulars sought in Pactiv's interrogatories. The Order was executed by the Court on June 20, 2012 and emailed to all counsel on that day. The Order was emailed to all counsel on the same day as Swiftlift was directed to serve answers to Pactiv's interrogatories. The preclusion order was not entered until June 27, 2012 and was not served with notice of entry until July 5, 2012, after the date to comply had expired.
Swiftlift answered Pactiv's interrogatories on June 29, 2012, nine days after the deadline set forth in this Court's order.
Pactiv now moves this Court for an order granting summary judgment dismissing Swiftlift's third-party action against Pactiv on the ground that this Court's preclusion order, dated June 20, 2012, prevents Swiftlift from establishing the elements of its third-party claims; granting judgment in favor of Pactiv on its counterclaims against Swiftlift for contractual indemnification based on Swiftlift's failure to serve an answer; directing Swiftlift to reimburse Pactiv for any damages assessed against it in defense of this action; and directing Swiftlift to reimburse Pactiv for the costs, fees and disbursements incurred in connection with Pactiv's motion to compel/preclude.
Defendant and Third-Party Plaintiff Swiftlift cross-moves for an order pursuant to CPLR 5015 and upon the inherent power of this Court vacating the preclusion order entered on June 27, 2012. Swiftlift cross-moves to vacate Pactiv's preclusion order pursuant to CPLR 5015 on the grounds that Swiftlift's default in complying (by a mere 9 days) was excusable. In fact, Swiftlift asserts, it did not default in complying with the order because it had no legal effect upon Swiftlift until Swiftlift was served with notice of entry, which did not occur until July 5, 2012, which was after Swiftlift had served the discovery responses. Swiftlift also requests vacatur of the preclusion order based on the misconduct of Pactiv's attorney in procuring, filing and serving the order with a deadline for compliance that was impossible. Finally, Swiftlift asserts the order should be vacated in the exercise of this Court's inherent power to vacate, modify, or amend its own orders, when the interests of justice so require.
Swiftlift's counsel offers as an excuse and asserts that his office can find no record that it ever received Pactiv's motion to compel. The first time counsel became aware of the motion was on June 20, 2012 when he was so advised by an attorney for one of the co-defendants. Swiftlift's counsel immediately called Pactiv's counsel and asked for an extension but the same was never granted. On June 29, 2012, Swiftlift answered Pactiv's interrogatories.
Initially, this Court notes that Pactiv's motion for summary judgment must be denied, as the moving papers failed to have a copy of the pleadings attached as required by CPLR 3212(b) (see, Notaro v. Bison Const. Corp., 32 AD3d 1218). With respect to Swiftlift's cross-motion seeking an order vacating the preclusion order entered on June 27, 2012, "A court has inherent power, not limited by statute, to relieve a party from a judgment or order entered on default" (see,Telly v. Telly, 242 AD2d 928; Town of Greenburgh v. Schroer, 55 AD2d 602). A court thus possesses the inherent power to vacate its judgment for sufficient reason and in the interest of justice (see, Woodson v. Mendon Leasing Corp., 100 NY2d 62). This Court determines that vacatur is warranted herein in the interest of substantial justice. This Court believes that denying vacatur under the [*3]circumstances presented herein would result in a substantial injustice to Swiftlift and a wholly unwarranted windfall to plaintiff. The unusual fact pattern presented herein warrants this determination.
Based upon the foregoing, Pactiv's motion is denied and Swiftlift's cross-motion is granted.
This shall constitute the Decision of the Court. Submit Order accordingly.
_____________________________
Craig J. Doran
Acting Supreme Court Justice
Dated at Canandaigua, New York,
thisday of December, 2012.
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