Warren County v Swan
Annotate this CaseDecided on November 7, 2018
Supreme Court, Warren County
Warren County, Plaintiff,
against
Michael Swan, as Administrator of the ESTATE of EARL GILSON and MICHELLE HILL, Defendants.
53341
The Clements Firm, Glens Falls (Thomas G. Clements of counsel), for plaintiff.
Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Paula Nadeau Berube of counsel), for defendant Michelle Hill.
Robert J. Muller, J.
Plaintiff formerly owned and operated the Westmount Health Facility (hereinafter Westmount), a residential health care facility in the Town of Queensbury, Warren County. On December 10, 2009, plaintiff commenced this action against a then resident at Westmount — defendant Earl Gilson (hereinafter Gilson) — and his daughter — defendant Michelle Hill (hereinafter defendant) — to recover an unpaid balance in the amount of $24,616.52. Defendant served an answer on or about January 19, 2010. It does not appear that issue was ever joined as to Gilson.
In September 2014, plaintiff filed a motion for the appointment of a guardian ad litem for Gilson. Counsel for the parties appeared for a conference before the Honorable David B. Krogmann on October 1, 2014, at which time counsel for plaintiff was directed to submit a proposed Order granting the motion. The proposed Order, however, was never submitted. In January 2016, the file was reassigned to the Honorable Martin D. Auffredou — who recused himself — and the file was then reassigned to this Court in March 2016. On March 23, 2016, the Court issued a letter Order deeming the motion for the appointment of a guardian ad litem abandoned based upon counsel's failure to submit a proposed Order (see Uniform Rules for Trial Cts [22 NYCRR] § 202.48 [b]). The Court further scheduled a status conference for April 6, 2016.
On March 28, 2016, counsel for plaintiff sent correspondence to the Court advising that Gilson died on November 4, 2014. The Court responded by letter Order dated April 1, 2016, removing the status conference from the calendar and directing counsel for plaintiff to file a [*2]motion for substitution within 90 days. While counsel did eventually file this motion for substitution, he did so well past the 90-day deadline. An Order granting the motion and substituting Michael Swan as Administrator of the Estate of Gilson was ultimately issued on January 25, 2017. When nothing further was received from counsel for either of the parties, the Court administratively closed the file by letter Order dated September 28, 2017.
On November 28, 2017, plaintiff served omnibus discovery demands and interrogatories on defendant. By correspondence dated December 5, 2017, counsel for defendant refused to respond because the Court had closed its file. Presently before the Court is plaintiff's motion to compel the responses (see CPLR 3124).
In opposition to the motion, defendant first contends that — because the case was closed by the Court — plaintiff cannot proceed with prosecution until it makes a motion to restore and such motion is granted. This contention is without merit. The cases cited by counsel in support of this argument pertain to the dismissal of abandoned cases under CPLR 3404, which provides that "[a] case in the supreme court . . . marked 'off' or struck from the calendar or unanswered on a clerk's calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute."
Here, the Court did not rely upon CPLR 3404 in closing its file. Rather, the Court administratively closed the file pursuant to the directives of the Administrative Judge for the Fourth Judicial District, which directives require Chambers to mark as "closed" any inactive files over their "standards and goals" dates. Chambers may then restore the file upon the receipt of a motion, a request for a conference, or anything else requiring the Court's attention.
Briefly, it must also be noted that even if the Court did rely upon CPLR 3404 in closing the file, one year did not pass between issuance of the September 28, 2017 letter Order and plaintiff's filing of the instant motion. As such, the action cannot be deemed abandoned under CPLR 3404.
Defendant next contends that it is extremely prejudicial that plaintiff has waited over eight years to serve omnibus discovery demands and interrogatories. In this regard, counsel for defendant has submitted an affidavit indicating that she is unable to respond to the demands because she is unaware of her client's whereabouts. Counsel for defendant states as follows:
"My firm has attempted on at least two occasions to contact our client, the latest being in February 2012, to no avail. While my client used to live in Michigan, I verily believe that she has now moved from that location. I do not know where my client presently resides."Under the circumstances, it is clear that defendant has certainly been prejudiced as a result of plaintiff's delay in serving omnibus discovery demands and interrogatories. Indeed, plaintiff has provided no excuse whatsoever for the delay. While Gilson's health and subsequent death perhaps provided one stumbling block, it certainly does not excuse eight years of failing to serve discovery demands — especially considering that Gilson has not even appeared. Had these demands been served in 2010 immediately following joinder of issue, defendant would presumably have had access to all of the necessary financial documents and been able to respond.
Based upon the foregoing plaintiff's motion to compel is denied in its entirety (cf. Remark Elec. Corp. v Manshul Constr. Corp., 242 AD2d 694, 695 [1997]).
In moving forward counsel are directed to prepare a proposed Preliminary Conference [*3]Stipulation and Order within ten days of service of this Decision and Order with an end date for all disclosure of May 1, 2019. While plaintiff has failed to serve its discovery demands in a timely fashion, defendant has not made a motion to dismiss the action and, as such, plaintiff is still entitled to responses.[FN1]
Therefore, having considered the Affidavit of Thomas G. Clements, Esq., sworn to May 7, 2018, together with Exhibits "1" through "5", the opposing Affidavit of Paula N. Berube, Esq. sworn to May 15, 2018 together with exhibits "A" and "B" and oral argument having been heard on November 5, 2018 relative to the motion, it is hereby
ORDERED that the motion to compel is denied, and it is further
ORDERED that counsel shall jointly submitted a proposed scheduling order with an end date for all disclosure of May 1, 2019 within ten (10) days of service of this Decision and Order, and it is further
ORDERED that any relief not specifically addressed herein has nonetheless been considered and is denied.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated May 7, 2018. Counsel for the defendant Michelle Hill is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon the other parties in accordance with CPLR 5513.
Dated: November 7, 2018
Lake George, New York
____________________________________
ROBERT J. MULLER, J.S.C. Footnotes
Footnote 1:It should be noted that although Uniform Rules of Trial Courts (22 NYCRR) § 202.8 (f) requires the scheduling of a preliminary conference in any case where a motion to compel is made and such a conference has not yet been held, the Court refrained from utilizing the rule in this case, however, as it further requires the Court to decide any issues that were raised in the motion and not resolved at the conference. It is this Court's assessment that a conference would not have resolved the issues raised in the instant motion.
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