Plycon Transp. Group, LLC v Kirschenbaum

[*1] Plycon Transp. Group, LLC v Kirschenbaum 2013 NY Slip Op 50128(U) Decided on January 31, 2013 Suffolk County Court Tarantino Jr., 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 31, 2013
Suffolk County Court

Plycon Transportation Group, LLC and PLYCAR TRANSPORTATION GROUP, LLC, Plaintiffs,

against

Stephen Kirschenbaum, Defendant.



21374/2011



Melissa A. Cavaliere Esq

The Weinstein Group PC

Attorneys for Plaintiffs

Three Crossways Park West

Woodbury NY 11797

516-802-5330

Jeremy Krantz Esq

Smith & Krantz LLP

Attorneys for Defendant

122 East 42 Street, Ste 1518

New York NY 10168

212-661-0279

Andrew G. Tarantino Jr., J.

This action was transferred on June 15, 2012, to this Court, pursuant to NY Civ Practice Law & Rules §325d. Although a former attorney in New York State, Defendant STEPHEN KIRSCHENBAUM retained counsel who initially brought a motion to dismiss the action upon the grounds of, inter alia, improper service and lack of subject matter jurisdiction. This Court denied that motion in a written decision on August 22, 2012. (See, 2012 NY Slip Op 51576(U)). On September 13, 2012, both attorneys appeared and entered into a Discovery Order wherein it was directed that all documents were to be exchanged by October 30, 2012, and all depositions were to be completed no later than November 30, 2012. At the Compliance Conference on December 7, 2012, the Court was informed that the Defendant [*2]failed to provide any documents and failed to appear for a deposition. The Court modified the prior Order and directed Defendant to exchange all documents no later than January 4, 2013, and to appear for and complete his deposition no later than January 30, 2013. The December 7, 2012, Order contained a notice that the Court may impose sanctions upon a party's non-compliance with the Order. On January 9, 2013, Jeremy J. Krantz, Esq, of Smith & Krantz, LLP, attorneys for Defendant, brought this motion to be relieved as Defendant's attorney of record. In his affirmation, Krantz stated "certain difficulties have arisen between us and Defendant with respect to communications with Defendant" and "there is a problem litigating this matter with a Defendant who is not located within the New York area." The Court included in the Order to Show Cause that sanctions may be imposed against Defendant for failing to comply with the prior discovery orders, and expressly directed Defendant to personally appear before this Court on January 31, 2013. On January 31, 2013, Eric Pitter, Esq., from Defendant's attorneys firm, informed the Court that Defendant was not going to appear before the Court.

ORDERED that Smith & Krantz, LLP is hereby relieved as attorney of record for Defendant STEPHEN KIRSCHENBAUM; and it is hereby

ORDERED and ADJUDGED, that sanctions are hereby imposed against STEPHEN KIRSCHENBAUM in the amount of FIVE THOUSAND DOLLARS ($5,000.00) for his willful and contumacious failure to comply with three (3) Orders of this Court, and it is further

ORDERED, that STEPHEN KIRSCHENBAUM is hereby directed to pay the abovementioned sanctions to THE WEINSTEIN GROUP PC, attorneys for Plaintiff, Three Crossways Park West, Woodbury NY 11797, on or before February 15, 2013; and it is further

ORDERED, that the Answer filed by Defendant STEPHEN KIRSCHENBAUM on about September 13, 2012, is hereby stricken; and it is further

ORDERED and ADJUDGED, that Defendant STEPHEN KIRSCHENBAUM is hereby held in default in Answering the Complaint in this action, and in default for his wilful failure to appear before this Court; and it is further

ORDERED, that Defendant STEPHEN KIRSCHENBAUM is hereby precluded from offering into evidence any documents or other materials at trial or inquest; and it is further

ORDERED, that an inquest or trial shall be conducted on MARCH 6, 2013, at 11:00AM, at this Court, One Court Street, Riverhead, NY, and that Defendant may appear thereat with Counsel; and it is further

ORDERED that THE WEINSTEIN GROUP PC, attorneys for Plaintiff, shall file no later than MARCH 1, 2013, a Note of Issue for Non-Jury trial; and it is further

ORDERED that except as stated herein, all proceedings are stayed until March 1, 2013 for Defendant to retain new counsel; and it is further

ORDERED that THE WEINSTEIN GROUP PC shall communicate a copy of this Order to the State of New Mexico First Judicial District Court, Santa Fe, New Mexico (Case No: D-101-CV-201103366). [*3]

The failure of attorneys to comply with court-ordered deadlines has increasingly become a problem in our court system. Arpino v FJF & Sons Elec. Co., Inc., 2012 NY Slip Op 08271 (2d Dept, December 5, 2012). Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules, and if the credibility of court orders and the integrity of the judicial system are to be maintained, a litigant cannot ignore court orders with impunity. Arpino v FJF & Sons Elec. Co., Inc., id. Where a Defendant wilfully and contumaciously fails to comply with a preliminary conference order, and two subsequent orders, the extreme sanction of striking the answer is warranted. Fish & Richardson PC v Schindler, 2009 NY Slip Op 30629U. In this case, Kirschenbaum, a former licensed attorney in New York State, knew his obligations to comply with the mandates of this Court. Instead, he failed to comply with the Preliminary Conference Order dated September 13, 2012, and with the Modified Discovery Order dated December 7, 2012, and chose to disregard the Show Cause Order dated January 9, 2013, which directed his appearance before this Court. His failure to abide by the basic rules governing compliance with disclosure orders cannot and will not be tolerated in our courts. See, Arpino v FJF & Sons Elec. Co., Inc., supra.

ENTER

Dated: January 31, 2013___________________________________

JCC