CPLR § 3126

Substantial Compliance with Discovery demands is not Willful and Contumacious

In this case. I'm sure there are exceptions. But generally, substantial compliance contraindicates an argument that a party's conduct was willful and contumacious.

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Lomax v Rochdale Vil., Inc.,

Pursuant to CPLR 3126, "[a] court may strike an answer as a sanction if a defendant refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed'" (Mazza v Seneca, 72 AD3d 754, 754, quoting CPLR 3126). While the nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court (see CPLR 3126[3];Kihl v Pfeffer, 94 NY2d 118, 122-123; Bernal v Singh, 72 AD3d 716, 717), the drastic remedy of striking a pleading is not appropriate absent a clear showing that the failure to comply with discovery demands is willful or contumacious (see CPLR 3126[3]; Moray v City of Yonkers, 76 AD3d 618).

Here, there was no clear showing that the defendants' conduct was willful or contumacious (see Dank v Sears Holding Mgt. Corp., 69 AD3d 557). Rather, the defendants substantially complied with their discovery obligations and, where demanded documents could not be found, the defendants provided affidavits showing that good faith efforts had been made to locate the documents (see Argo v Queens Surface Corp., 58 AD3d 656, 656-657; Maffai v County of Suffolk, 36 AD3d 765, 766; Sagiv v Gamache, 26 AD3d 368, 369). Accordingly, it was an improvident exercise of discretion to strike the answer.

Motions to strike, generally, are just an easy way to bill or aggravate the other party, serving no useful purpose.

On Discovery

These are some of the leftover cases from last week and maybe one or two
from this week.

CPLR
§ 3126 Penalties for refusal to
comply with order or to disclose

Cobenas v Ginsburg Dev. Cos., LLC, 2010 NY Slip Op 05718 (App. Div.,
2^nd, 2010)

In the absence of evidence that
the appellant willfully and contumaciously failed to appear for an examination
before trial, the Supreme Court should not have stricken his answer (see Cambry v Lincoln
Gardens, 50 AD3d 1081; Conciatori v Port
Auth. of N.Y. & N.J., 46 AD3d 501). The appropriate
remedy was to preclude the appellant from offering any testimony at trial (see Patel v DeLeon,
43 AD3d 432; Williams v Ryder, TRS,
Inc., 29 AD3d 784).

22 NYCRR 202.17 Exchange
of medical reports in personal injury and wrongful death actions

Shichman v Yasmer, 2010 NY Slip Op 05751 (App. Div., 2^nd, 2010)

The defendant here met his initial
burden of establishing his entitlement to judgment as a matter of law, which
the plaintiffs do not dispute on appeal. In opposition to the defendant's
motion, the plaintiffs principally relied on their expert's affidavit. However,
as the defendant argued and the Supreme Court found, the plaintiffs failed to
satisfy their obligations pursuant to 22 NYCRR 202.17 to serve the defendant
with a report concerning their expert's physical examination of the plaintiff.
Accordingly, the Supreme Court providently exercised its discretion in
precluding so much of the plaintiffs' expert's affidavit as was derived from
the expert's physical examination of the plaintiff (see Neils v Darmochwal, 6 AD3d 589, 590). However, under the
circumstances presented here, the Supreme Court improvidently exercised its
discretion in precluding the plaintiffs' expert's opinions in the affidavit
which were based on other evidence in the case ( id.). Based on a review of the affidavit, it is clear that the
expert's opinions derived from other sources were not "inextricably
intertwined" with his or her opinions derived from the physical
examination of the plaintiff (id.).
The expert's opinion, with regard to certain conclusions, was not dependent or
based upon the physical examination. For example, the expert's conclusion that
the defendant deviated from accepted podiatric practice by performing the
procedures at issue at the neck of the first metatarsal rather than at the head
of the first metatarsal, as proper practice allegedly demanded, was based,
inter alia, on the defendant's own deposition testimony as well as the expert's
expertise.

CPLR § 3101 Scope of disclosure

(a)
Generally.
There shall be full disclosure of all matter material and necessary in
the prosecution or defense of an action, regardless of the burden of
proof, by…

(d) Trial preparation

Spohn-Konen v Town of Brookhaven, 2010 NY Slip Op 05382 (App. Div., 2^nd,
2010)

While CPLR 3101(a) provides that "[t]here shall be full
disclosure of all matter material and necessary in the prosecution . . . of an
action" (see Allen v Crowell-Collier
Publ. Co., 21 NY2d 403, 406),
"unlimited disclosure is not permitted" (Harris v Pathmark Stores, Inc, 48
AD3d 631, 632 [internal quotation marks omitted]; see
Silcox v City of New York, 233
AD2d 494, 494). CPLR 3103(a) provides that a court may issue a protective order
denying, limiting, conditioning, or regulating the use of any disclosure
device, in order to prevent unreasonable annoyance, expense, embarrassment,
disadvantage, or other prejudice to the other party.

To show that additional depositions are necessary, it must be
demonstrated (1) that the representatives already deposed had insufficient
knowledge, or were otherwise inadequate, and (2) that there is a substantial
likelihood that the persons sought for depositions possess information which is
material and necessary to the prosecution of the case (see Nazario v City of New York, 27
AD3d 439; Hayden v City of New York, 26
AD3d 262; Saxe v City of New York, 250
AD2d 751, 752; Carter v New York City Bd. of Educ., 225 AD2d 512; Zollner
v City of New York, 204 AD2d
626, 627). Since the plaintiff failed to sustain her burden of demonstrating
these two elements, the Supreme Court properly granted the defendant's motion
for a protective order (see
Sladowski-Casolaro v World Championship Wrestling, Inc., 47 AD3d 803, 803-804; Barone
v Great Atl. & Pac. Tea Co., 260
AD2d 417, 417-418; Saxe v City of New York, 250 AD2d at 752).

Green v William Penn Life Ins. Co. of N.Y, 2010 NY Slip Op 05327 (App. Div., 1st, 2010)

One reason it is so troubling that plaintiff was prejudiced in
this manner is that the situation defense counsel was attempting to solve with
his sudden introduction of an expert witness was of his own making. It arose
from defense counsel's litigation decision to use Mr. Green's treating
internist, Dr. Robert Bos, on his direct case to establish that Mr. Green had
been suicidal. Plaintiff did nothing to create the predicament in which the
defense found itself. Since the burden was always on defendant to overcome the
presumption and prove that Mr. Green committed suicide, and plaintiff had no
burden on the issue, defendant cannot possibly point to plaintiff's not calling
an expert to justify defendant's initial decision not to call its own expert.

The last decision is far longer than this blurb would suggest. It’s worth reading.

I forgot to post this old subpoena decision, but it reminded me to post two recent decisions

Hart v Kinney Drugs, Inc., 67 AD3d 1154 (App. Div., 3rd, 2009)

In 2007, after relations between the parties had deteriorated and the tenant brought an action against two of the landlords' principals, the landlords commenced this action alleging that, among other things, the tenant had breached the parties' agreements by failing to pay percentage rents for the three stores. The tenant answered that the memorandum had terminated its obligation to pay percentage rents for those stores and served a subpoena for the records of the landlords' bank. When the landlords moved to quash the subpoena, the tenant cross-moved for summary judgment dismissing the cause of action.

Finding the memorandum to be ambiguous as to whether the tenant was obligated to pay percentage rents for the three stores, Supreme Court denied the tenant's cross motion and partially denied the landlords' motion to quash by greatly narrowing the scope of the tenant's subpoena. The landlords then moved to renew the motion to quash the subpoena in its entirety and attempted to present a further "Global Lease Agreement" in support of its position. That motion also was denied. The landlords now appeal from Supreme Court's orders, contending that the memorandum is not ambiguous since it is silent as to percentage rents for the three stores and, therefore, the lease terms regarding percentage rents remain unchanged. The landlords argue that, in the absence of any ambiguity, the information sought by the tenant's subpoena is extrinsic evidence that cannot be considered in construing the memorandum.

There can be no real dispute that the tenant's subpoena seeks extrinsic evidence. Inasmuch as extrinsic evidence of the parties' intent may be considered only if their agreement is ambiguous (see Greenfield v Philles Records, 98 NY2d 562, 569 [2002]; R/S Assoc. v New York Job Dev. Auth., 98 NY2d 29, 33 [2002]), the landlords' motion to quash necessarily depends upon whether the memorandum is ambiguous. It is well settled that "[w]hether or not a writing is ambiguous is a question of law to be resolved by the courts" (W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). In addition, while "silence does not equate to contractual ambiguity" (Greenfield v Philles Records, 98 NY2d at 573; see Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001]), an omission as to a material issue can create an ambiguity and allow the use of extrinsic evidence where the context within the document's four corners suggests that the parties intended a result not expressly stated (see Louis Dreyfus Energy Corp. v MG Ref. & Mktg., Inc., 2 NY3d 495, 500 [2004]; Barrow v Lawrence United Corp., 146 AD2d 15, 18-19 [1989]).

***

Inasmuch as the memorandum can be read as providing either a new, increased single rent term that replaced the prior base and percentage rents for the three stores, as the tenant claims, or new, increased base rents in addition to the existing percentage rents, as the landlords claim, it is ambiguous. In view of the questions raised by the memorandum's inconsistent treatment of these two groups of stores, unexplained within its four corners, Supreme Court properly determined that extrinsic evidence is needed to determine the parties' intent in executing it (see Louis Dreyfus Energy Corp. v MG Ref. & Mktg., Inc., 2 NY3d at 500; Belknap v Witter & Co., 61 NY2d 802, 804 [1984], affg 92 AD2d 515 [1983]; State of New York v Industrial Site Servs., Inc., 52 AD3d 1153, 1156 [2008]; Barrow v Lawrence United Corp., 146 AD2d at 18).

Given that ruling, Supreme Court also did not abuse its discretion in permitting disclosure of the landlords' records held by a nonparty to the extent that they could reveal the parties' intent in executing the memorandum. The tenant sufficiently demonstrated that the information which it sought was material and necessary. Further, the court carefully limited the scope of disclosure to shield confidential financial information, making it unnecessary for the tenant to show that the information is indispensable (see generally Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406-407 [1968]; Jordan v Blue Circle Atl., 296 AD2d 752, 752-753 [2002]; cf. Saratoga Harness Racing v Roemer, 274 AD2d 887, 889 [2000]).

Finally, in light of the landlords' failure to adequately explain the omission of the Global Lease Agreement from their submission on the parties' initial motions, Supreme Court did not abuse its discretion by denying the motion to renew (see Matter of Mouawad, 61 AD3d 1169, 1169-1170 [2009]; Kahn v Levy, 52 AD3d 928, 929 [2008]).

Almost on topic is a more recent decision: Gitlin v Chirinkin, 2010 NY Slip Op 01920 (App. Div., 2nd, 2010)

The Supreme Court did not improvidently exercise its discretion in denying that branch of the appellants' motion which was to compel the plaintiff to disclose his tax returns and bank records. The appellants failed to demonstrate that any information in the tax returns was indispensable to their defense or counterclaim and could not be obtained from other sources (see Pugliese v Mondello, 57 AD3d 637; Latture v Smith, 304 AD2d 534, 536; see also Banigan v Hill, 57 AD3d 463; Benfeld v Fleming Props., LLC, 44 AD3d 599). Moreover, the appellants failed to demonstrate that the plaintiff's bank records were material and necessary to their defense or counterclaim (see CPLR 3101[a]; Auerbach v Klein, 30 AD3d 451).

The plaintiff sustained his burden of demonstrating that the appellants should be required to disclose their tax returns (see Kerman v Martin Friedman, C.P.A., P.C., 21 AD3d 997). In addition, the plaintiff also clearly demonstrated that the bank records he requested of the appellants were material and necessary to the pursuit of his claims that the defendants had defrauded him. Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the appellants' motion which was for a protective order pursuant to CPLR 3103.

Tangentially related is Riccuiti v Consumer Prod. Servs., LLC, 2010 NY Slip Op 01947 (App. Div., 2nd, 2010)

Thereafter, the plaintiff moved, inter alia, for summary judgment on the issue of liability and pursuant to CPLR 3126 to strike the answer insofar as asserted on behalf of Kowalski, based upon Kowalski's failure to appear for a court-ordered deposition.

***

"Although actions should be resolved on the merits whenever possible, where the conduct of th
e resisting party is shown to be willful and contumacious, the striking of a pleading is warranted" (Savin v Brooklyn Mar. Park. Dev. Corp., 61 AD3d 954, 954). Here, the Supreme Court providently exercised its discretion in striking the answer insofar as asserted on behalf of Kowalski. The record reflects that the answer was interposed on behalf of both defendants, and that Kowalski did not raise any defenses based upon lack of personal jurisdiction. In opposition to that branch of the plaintiff's motion which was to strike the answer insofar as asserted on behalf of Kowalski, defense counsel represented that his office was unable to locate Kowalski and, therefore, could not produce him for a deposition. The mere fact that Kowalski may have been outside the State of New York, and had made himself unavailable, did not preclude the Supreme Court from striking the answer [*2]insofar as interposed by him for failure to appear at a court-ordered deposition (see Carabello v Luna, 49 AD3d 679, 680; Maignan v Nahar, 37 AD3d 557).

The bold is mine.

You Can’t Be Forced to Give What You Don’t Have (Discovery)

I can't begin to tell you how often I see attorneys demanding that the other side produce items that don't exist.

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Gottfried v Maizel, 2009 NY Slip Op 09619 (App. Div., 2nd, 2009)

Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in only partially granting the plaintiff's motion to compel disclosure. The defendant could not be compelled to produce records, documents, or information that were not in his possession, or did not exist (see Argo v Queens Surface Corp., 58 AD3d 656; Maffai v County of Suffolk, 36 AD3d 765; Sagiv v Gamache, 26 AD3d 368, 369), or that were privileged (see Logue v Velez, 92 NY2d 13). Contrary to the plaintiff's arguments, the Preliminary Conference Order dated February 13, 2008, did not preclude the court from reviewing the propriety of his discovery demands or the adequacy of the defendant's response to those demands.

The bold is mine.

These Are Not The Droids You’re Looking For (Discovery: CPLR § 3126)

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Emmitt v City of New York, 2009 NY Slip Op 07331 (App. Div., 1st, 2009)

A party that disobeys court-ordered disclosure is subject to preclusion of relevant portions of its evidence (CPLR 3126). The nature of the sanction lies generally within the broad discretion of the court, and should not be disturbed absent an improvident exercise thereof (Gross v Edmer Sanitary Supply Co., 201 AD2d 390 [1994]). In its answer, defendant raised as an affirmative defense that any and all hazards, defects and dangers were of such an open, obvious and apparent nature that they were or should have been known to plaintiff, thus rendering her injuries attributable to her own culpable conduct. There is no reason to bar defendant from pursuing that defense. However, it was not an improvident exercise of discretion to preclude defendant from offering evidence as to the Con Edison permits. We modify only to clarify that it will be conclusively presumed at trial that defendant created or had notice of the trench involved in the accident. This relief will ameliorate the prejudice plaintiff has suffered as a result of defendant’s failure to timely disclose the Con Ed permits. Defendant’s ability to [*2]defend the suit by attributing the accident to plaintiff’s own lack of due care is not impaired.

Minaya v Duane Reade Intl., Inc., 2009 NY Slip Op 06767 (App. Div., 1st, 2009)

In sanctioning defendant for failing to preserve critical evidence, the motion court appropriately exercised its “broad discretion to provide . . . relief to the party deprived of the lost evidence” (Ortega v City of New York, 9 NY3d 69, 76 [2007]). Defendant failed to preserve a video recording that may have shown the stairway before and during plaintiff’s accident. The unavailability to plaintiff of the video recording may have impaired his ability to establish that defendant possessed the requisite notice of a defective condition on the stairs. Under these circumstances, however, the extreme sanction of preclusion is not warranted “to restore balance to the matter” (Baldwin v Gerard Ave., LLC, 58 AD3d 484 [2009]). Rather, an adverse inference is sufficient to prevent defendant from using the absence of the videotape to its own advantage (Tomasello v 64 Franklin, Inc., 45 AD3d 1287 [2007]).

Panagiotou v Samaritan Vil., Inc., 2009 NY Slip Op 07811 (App. Div., 2nd, 2009)

The plaintiffs failed to serve a responsive bill of particulars within the 30-day time limit set in the conditional order of preclusion entered February 25, 2008. The order, therefore, became absolute (see Gilmore v Garvey, 31 AD3d 381; Echevarria v Pathmark Stores, Inc., 7 AD3d 750, 751). To avoid the adverse impact of the conditional order of preclusion, the plaintiffs were required to demonstrate a reasonable excuse for their failure to comply and a meritorious cause of action (see State Farm Mut. Auto Ins. Co. v Hertz Corp., 43 AD3d 907, 908; Echevarria v Pathmark Stores, Inc., 7 AD3d at 751). The plaintiffs failed to make such a showing. Since the order of preclusion prevents the plaintiffs from establishing a prima facie case, the Supreme Court properly granted the defendants’ separate motions for summary judgment dismissing the complaint (see Calder v Cofta, 49 AD3d 484; State Farm Mut. Auto Ins. Co. v Hertz Corp., 43 AD3d at 908).

Bender, Jenson & Silverstein, LLP v Walter, 2009 NY Slip Op 08572 (App. Div., 2nd, 2009)

Since the defendant failed to establish that she made any effort to comply with the plaintiff’s repeated discovery requests, the Supreme Court properly considered her lack of cooperation to be willful and contumacious, and properly conditionally granted the plaintiff’s motion to preclude her from introducing the requested documents in evidence (see Kihl v Pfeffer, 94 NY2d 118; D’Aloisi v City of New York, 7 AD3d 750; Brooks v City of New York, 6 AD3d 565; Donovan v City of New York, 239 AD2d 461; cf. Scardino v Town of Babylon, 248 AD2d 371).

In light of the defendant’s noncompliance with discovery, the Supreme Court properly denied her motion to quash certain subpoenas which had been served on nonparty witnesses, on the basis that the information sought was otherwise unobtainable (see Hamilton v Touseull, 48 AD3d 520; Matter of Validation Review Assoc. [Berkuny Schimel], 237 AD2d 614; cf. People v Marin, 86 AD2d 40).

The bold is mine.

Post-NOT Discovery; 22 NYCRR 202.21

22 NYCRR 202.21 Note of issue and certificate of readiness

CPLR § 3126 Penalties for refusal to comply with order or to disclose

CPLR R. 5515 Taking an appeal; notice of appeal

1. An
appeal shall be taken by serving on the adverse party a notice of
appeal and filing it in the office where the judgment or order of the
court of original instance is entered except that where an order
granting permission to appeal is made, the appeal is taken when such
order is entered. A notice shall designate the party taking the appeal,
the judgment or order or specific part of the judgment or order
appealed from and the court to which the appeal is taken.

Racine v Grant, 2009 NY Slip Op 06127 (App. Div., 2nd, 2009)

The Supreme Court improvidently exercised its discretion in granting
the defendants' cross motion pursuant to CPLR 3216 to dismiss the
complaint to the extent of directing the plaintiff to comply with a
demand for discovery which was annexed to the cross motion papers, as
the demand was made more than one year after a note of issue had been
filed in the action. The defendants failed to make the requisite
showing that "unusual or unanticipated circumstances" had arisen after
the filing of the note of issue (22 NYCRR 202.21[d], [e]; see Silverberg v Guzman, 61 AD3d 955; Utica Mut. Ins. Co. v P.M.A. Corp., 34 AD3d 793, 794; Audiovox Corp. v Benyamini, 265 AD2d 135, 138; Marks v Morrison, 275 AD2d 1027), to justify the demanded disclosure at this late stage of the action.

The plaintiff's argument that the Supreme Court should have
granted his motion to strike the defendants' answer is not properly
before us, as the plaintiff's notice of appeal limited the scope of the
appeal to that part of the Supreme Court's order which determined the
defendants' cross [*2]motion (see CPLR 5515[1]; Marciano v Ran Oil Co., E., LLC, 63 AD3d 1118).

The bold is mine.

Discovery: CPLR § 3126 ;R. 3124 & 22 NYCRR § 202.7; Spoilation & Waiver & a little CPLR R. 3212(a)

CPLR § 3126 Penalties for refusal to comply with order or to disclose

CPLR R. 3124 Failure to disclose; motion to compel disclosure

22 NYCRR § 202.7 Calendaring of Motions; Uniform Notice of Motion Form; Affirmation of Good Faith
(a)(2)

Holland v W.M. Realty Mgt., Inc., 2009 NY Slip Op 05844 (App. Div., 2nd, 2009)

Under the common-law doctrine of spoliation, when a party
negligently loses or intentionally destroys key evidence, the
responsible party may be sanctioned under CPLR 3126 (see Ingoglia v Barnes & Noble Coll. Booksellers, Inc., 48 AD3d 636, 637; Baglio v St. John's Queens Hosp., 303
AD2d 341, 342). However, striking a pleading as a sanction for
spoliation is appropriate only where the missing evidence deprives the
moving party of the ability to establish his or her claim or defense (see Enstrom v Garden Place Hotel, 27 AD3d 1084, 1086; Iannucci v Rose, 8 AD3d 437, 438; Baglio v St. John's Queens Hosp., 303 AD2d at 342).

The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for the spoliation of evidence (see Iannucci v Rose, 8 AD3d at 438; Allstate Ins. Co. v Kearns, 309 AD2d 776; Puccia v Farley, 261
AD2d 83, 85). We should substitute our judgment for that of the Supreme
Court only if its discretion was exercised improvidently (see Melendez v City of New York, 2 AD3d 170, 170-171).

A motion for leave to renew "shall be based upon new facts not
offered on the prior motion that would change the prior determination"
(CPLR 2221[e][2]) and "shall contain reasonable justification for the
failure to present such facts on the prior motion" (CPLR 2221[e][3]).
However, it is within a court's discretion to grant leave to renew upon
facts known to the moving party at the time of the original motion (see J.D. Structures v Waldbaum, 282 AD2d 434, 435).

Under the peculiar facts of this action, the Supreme Court
should have granted that branch of the plaintiffs' motion which was for
leave to renew his earlier opposition, and, upon renewal, the prior
order of preclusion should have been vacated. It was uncontested that
the mold samples taken in 2002 had a testable "shelf life" of only six
months. That being the case, the destruction of the swabbed mold
samples caused no prejudice to the defendant inasmuch as those samples
had quickly and naturally lost their testable value (see Bannon v Auerbach, 6 Misc 3d 219,
220-221). The defendant, having been put on notice of the plaintiffs'
claims beginning in December 2001, could have obtained its own mold
samples in 2002, but did not do so. Moreover, the wood sample taken
from the apartment has been recently located, for reasons adequately
explained in the plaintiffs' renewal papers.

Jennosa v Vermeer Mfg. Co., 2009 NY Slip Op 05845 (App. Div., 2nd, 2009)

Moreover, under the circumstances of this case, Governale's loss of the
undeveloped film of the post-accident scene did not warrant the Supreme
Court's determination that he was precluded from offering certain
evidence at trial and allowing an adverse inference charge against him.
"When a party negligently [loses] or intentionally destroys key
evidence, thereby depriving the non-responsible party from being able
to prove its claim or defense, the responsible party may be sanctioned
by the striking of its pleading" (Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717,
718). However, "where the evidence lost is not central to the case or
its destruction is not prejudicial, a lesser sanction, or no sanction,
may be appropriate" (Klein v Ford Motor Co., 303 AD2d 376, 377).
Contrary to the plaintiff's contentions, the post-accident photographs
that were lost by Governale were not central to the case, and the loss
did not prejudice the plaintiff in opposing Governale's motion for
summary judgment, or otherwise. The plaintiff himself testified that he
inspected the premises prior to commencing his work and that the
underground hose only became visible after it was entangled in the
stump grinder. Thus, any contention that the post-accident photographs
would have depicted conditions demonstrating that Governale had
constructive notice of the alleged dangerous condition is speculative.
Under these circumstances, Governale's loss of the post-accident
photographs did not warrant the imposition of a sanction.

Jones v Grand Opal Constr. Corp., 2009 NY Slip Op 05748 (App. Div., 2nd, 2009)

The defendants waived their right to conduct physical examinations
of the plaintiffs by their failure to arrange for such examinations
within the 45-day period set forth in the parties' preliminary
conference order (see Rodriguez v Sau Wo Lau, 298 AD2d 376; James v New York City Tr. Auth., 294 AD2d 471, 472; Schenk v Maloney, 266
AD2d 199, 200), and by their failure to move to vacate the note of
issue within 20 days after service of it and the certificate of
readiness (see 22 NYCRR 202.21[e]; James v New York City Tr. Auth., 294 AD2d 471, 472; Schenk v Maloney, 266 AD2d 199, 200; Williams v Long Is. Coll. Hosp., 147
AD2d 558, 559). However, under certain circumstances and absent a
showing of prejudice to the opposing party, the court may exercise its
discretion to relieve a party of a waiver of the right to conduct a
physical examination (see Barbosa v Capolarello, 52 AD3d 629; Cespuglio v SA Bros. Taxi Corp., 44 AD3d 697, 698; Williams v Long Is. Coll. Hosp., 147 AD2d 559, 559; Kanterman v Palmiotti, 122
AD2d 116). Here, the plaintiffs served a note of issue and statement of
readiness 10 days after the expiration of the time period set forth in
the preliminary conference order for conducting physical examinations
of the plaintiffs and five months prior to the date in said order for
filing a note of issue. Within seven days after the plaintiffs
prematurely filed a note of issue, the defendants designated an
orthopedist and a neurologist to examine the plaintiffs. Thereafter,
the defendants promptly made the instant motion, inter alia, to compel
the plaintiffs to submit to physical examinations. No prejudice to the
plaintiffs has been shown by reason of the short delay, since the case
will be retained on the trial calendar (see Williams v Long Is. Coll. Hosp., 147 AD2d 558, 560; Kanterman v Palmiotti, 122 AD2d 116, 117). Accordingly, the Supreme Court providently exercised its discretion in relieving the defendants of [*2]their
waiver and in granting that branch of the defendants' motion which was
to compel the plaintiffs to submit to physical examinations.

The Supreme Court providently exercised its discretion in
granting that branch of the defendants' motion which was for leave to
extend their time to move for summary judgment to the extent of
permitting such motion no later than 45 days after the completion of
physical examinations, since there was significant discovery
outstanding at the time the note of issue was filed (see CPLR 3212[a]; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124; Marks v Mode, 53 AD3d 533; Sclafani v Washington Mut., 36 AD3d 682; Herrera v Felice Realty Corp., 22 AD3d 723, 724).

Molyneaux v City of New York, 2009 NY Slip Op 05610 (App. Div., 1st, 2009)

The court improperly granted plaintiffs' CPLR 3126 motion in the
absence of the required affirmation by their attorney that the latter
had conferred with defendants' attorney in a good faith effort to
resolve the issues raised by the motion (22 NYCRR 202.7[a][2]; see Cerreta v New Jersey Tr. Corp.,
251 AD2d 190 [1998]). In addition, there was also no clear showing that
any failure by the City to comply with the conditional order was
willful, contumacious or in bad faith (see Reidel v Ryder TRS, Inc., 13 AD3d 170, 171 [2004]).

Defendants represent in their brief that they "recently filed a
stipulation withdrawing [their] appeal from the August [10] 2007 Order"
denying their cross motion seeking, inter alia, renewal of their motion
for summary judgment; such withdrawal apparently was in response to [*2]such
leave having been granted during the pendency of the appeal. The
stipulation, however, is not on file with the Clerk of this Court.
Accordingly, we deem the appeal from the August 10, 2007 order
abandoned, and dismiss it.

The bold is mine.

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Northfield Ins. Co. v Model Towing & Recovery, 2009 NY Slip Op 04878 (App. Div., 2nd, 2009)

A preliminary conference order dated July 28, 2005, set forth
deadlines for discovery including, inter alia, a provision that the
plaintiff was to provide, within 30 days of the preliminary conference,
its complete claims file, all contracts relating to the subject
premises, and responses to any of the demands of the defendant Model
Towing and Recovery (hereinafter Model Towing) to the extent not
already provided. By order entered December 19, 2006, the Supreme
Court, inter alia, directed the parties to appear for a status
conference on February 14, 2007, at which time it was anticipated that
all discovery would be completed.

The court conducted numerous status conferences throughout 2006
and 2007 to expedite discovery. At the conclusion of a conference on
December 12, 2007, after the parties failed to complete discovery, the
court issued an order directing, inter alia, that by January 16, 2008,
the plaintiff was to produce a certified copy of its claims and
underwriting files pertaining to the subject premises, in addition to
providing responses to any outstanding discovery requests. In addition,
Model Towing was directed to "advise" the plaintiff by letter with
respect to the outstanding demands by December 14, 2007. The order also
directed that the plaintiff's failure to provide any of the demanded
documents would result in preclusion. Model Towing provided a list of
25 outstanding demands to the plaintiff on December 12, 2007, in court.
By January 16, 2008, discovery from the plaintiff remained outstanding.

Thereafter, Model Towing moved, inter alia, to strike the
plaintiff's complaint pursuant to CPLR 3126 for the plaintiff's failure
to comply with discovery demands and discovery orders of the court,
including the order dated December 12, 2007. In an order entered August
21, 2008, the court denied the motion, finding that the plaintiff's
actions were not willful, contumacious, or calculated to deprive Model
Towing of discovery. In the same order, the court set forth a schedule
by which the outstanding discovery was to be completed and provided
that failure to comply with the schedule would be the basis for a
motion for relief pursuant to CPLR 3126.

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter of discretion (see Kihl v Pfeffer, 94 NY2d 118, 122; Zletz v Wetanson, 67 NY2d 711; Morano v Westchester Paving & Sealing Corp., 7 AD3d 495; Novis v Benes,
268 AD2d 464). Although striking a pleading is a drastic remedy, it is
appropriate where there is a clear showing that the failure to comply
with discovery demands was willful or contumacious (see Frias v Fortini, 240 AD2d 467; cf. Novis v Benes,
268 AD2d 464). It can be inferred that a party's conduct is willful and
contumacious when it repeatedly fails to comply with discovery demands
and court orders compelling disclosure without providing a reasonable
excuse for noncompliance (see Mei Yan Zhang v Santana, 52 AD3d 484, 485; Dinstber v Geico Ins. Co., 32 AD3d 893; Kroll v Parkway Plaza Joint Venture, 10 AD3d 633, 634; Ordonez v Guerra, 295 AD2d 325; Cutolo v Khalife, 242 AD2d 661; Frias v Fortini, 240 AD2d 467; Kubacka v Town of North Hempstead,
240 AD2d 374). "If the credibility of court orders and the integrity of
our judicial system are to be maintained, a litigant cannot ignore
court orders with impunity" (Kihl v Pfeffer, 94 NY2d at 123).

The plaintiff did not offer a reasonable excuse for failing to
comply with Model Towing's repeated discovery demands or the orders of
the court directing compliance with those demands. Accordingly, it was
an improvident exercise of discretion to deny Model Towing's motion to
unconditionally strike the complaint (see Hanlon v Rosenthal, 7 AD3d 758; Smith v Eastern Long Is. Hosp., 263 AD2d 477).

IDT Corp. v Morgan Stanley Dean Witter & Co., 2009 NY Slip Op 05253 (App. Div., 1st, 2009)

IDT alleges that Morgan Stanley produced more than 2,000 pages of
documents in response to IDT's subpoena and represented in writing that
it had fully complied with the subpoena, but that during the course of
discovery in this action IDT learned that Morgan Stanley produced only
a small percentage of the documents that were relevant and responsive
to IDT's subpoena and that the excluded documents, consisting of an
additional 500,000 pages, included critical "smoking gun" documents.
One of those documents is a letter from two Morgan Stanley executives
to Telefonica's chairman just two months after the contract with IDT
was signed, advising Telefonica to sell its equity in the project at
cost and encouraging Telefonica to reevaluate its agreements with IDT.
IDT alleges that this concealment by Morgan Stanley caused it great
damage in the arbitration because the withheld documents would have
enabled IDT to prove that Telefonica had breached the contract as early
as October 1999 rather than somewhere between October 2000 and March
2001, as the arbitrators determined, thus increasing the award of
damages.

Since IDT had not initially included causes of action for
fraudulent misrepresentation and fraudulent concealment in its
complaint, it sought leave to amend the complaint ^[FN2].
Supreme Court granted the motion, rejecting Morgan Stanley's arguments
that the claims were legally deficient because IDT could not
demonstrate that it suffered any harm as a result of not having the
documents during the arbitration and that the documents were
cumulative. The court found that IDT had pleaded the elements of fraud
and fraudulent concealment, noting that the elements of fraudulent
concealment are the same as fraud, with the addition that the party
charged with the fraud must have had a duty to disclose.

Subsequently, Morgan Stanley moved to dismiss those causes of
action for failure to state a cause of action on the ground that New
York does not recognize spoliation of evidence as a cognizable tort. On
constraint of the Court of Appeals' decision in Ortega v City of New York (9 NY3d 69
[2007]), Supreme Court granted the motion, concluding that IDT's
framing of the claims as fraud claims "[did] not take it out of the
rules regarding spoliation of evidence claims." This was error.

Supreme Court correctly found in its initial assessment that
IDT had sufficiently alleged claims for fraud and fraudulent
concealment. IDT alleges that Morgan Stanley made a material
misrepresentation of fact when it represented that it had fully
complied with the subpoena; that the misrepresentation was made
intentionally to defraud or mislead IDT; that IDT reasonably [*3]relied on the misrepresentation, and that it suffered damage as a result of its reliance (see e.g. P.T. Bank Cent. Asia, N.Y. Branch v ABN AMRO Bank N.V.,
301 AD2d 373, 376 [2003]). In addition to these elements, IDT alleges
that Morgan Stanley had a duty to disclose and that it failed to do so,
thus stating a claim for fraudulent concealment (id.).

The Court of Appeals' decision in Ortega v City of New York (9 NY3d 69 [2007], supra)
does not require dismissal of IDT's claims for fraud and fraudulent
concealment simply because the vehicle for the alleged fraudulent
conduct was concealment of evidence. First, the Ortega holding
involved a claim of negligent spoliation of evidence, not a claim of
intentional concealment or spoliation of evidence. Second, unlike the
City in Ortega, which the court noted was a third party with a
duty to preserve evidence but with no connection to the underlying
litigation, Morgan Stanley was not an uninvolved third party to the
arbitration proceeding between IDT and Telefonica. It had fiduciary
relationships with both parties, and the concealment of documents from
IDT arguably both benefitted its client Telefonica in the arbitration
and protected Morgan Stanley from being sued by IDT.

Two additional circumstances distinguish this case from Ortega. The Ortega
court refused to recognize a third-party spoliation claim because the
content of the lost evidence is unknown, thus leading to speculation as
to causation and damages. Here, there is no such concern because the
concealed documents have been produced. The court also found that it
would not be sound public policy to permit an independent tort of
spoliation to be asserted against a municipality. There are no public
policy reasons to disallow IDT's claims for fraud and fraudulent
concealment against its fiduciary based on the latter's spoliation of
subpoenaed documents.

Importantly, the Ortega court wrote that "[a]t bottom,
plaintiffs seek recognition of a new cause of action because they
cannot meet the traditional proximate cause and actual damages
standards at the foundation of our common-law tort jurisprudence" (9
NY3d at 80). IDT suffers from no such impediment. It has met the
pleading standard for fraud and fraudulent concealment and thus has a
remedy under existing tort principles. There is no indication in Ortega
that the court would reject an already recognized common-law tort claim
simply because the claim was based on the spoliation of evidence.

We note that the New Jersey courts, which do not recognize a
separate tort action for intentional spoliation, recognize a claim of
fraudulent concealment based on the intentional spoliation of evidence (see e.g. Rosenblit v Zimmerman, 166 NJ 391, 766 A2d 749 [2001]; R.L. v Voytac, 402 NJ Super 392, 407-408, 954 A2d 527, 536 [App Div 2008] certif granted in part 197 NJ 259, 962 A2d 530 [2008]; Viviano v CBS, Inc., 251 NJ Super 113, 597 A2d 543 [App [*4]Div 1991] certif denied 127 NJ 565, 606 A2d 375 [1992]). There is no sound reason for New York courts to conclude otherwise.

The bold is mine.

22 NYCRR 202.21(d); CPLR § 3126; CPLR 5015; Presumption of receipt

CPLR § 3126 Penalties for refusal to comply with order or to disclose

CPLR R. 5015 Relief from judgment or order

22 NYCRR 202.21 Note of issue and certificate of readiness
(d) Pretrial proceedings
Where a party is prevented from filing a note of issue and certificate
of readiness because a pretrial proceeding has not been completed for
any reason beyond the control of the party, the court, upon motion
supported by affidavit, may permit the party to file a note of issue
upon such conditions as the court deems appropriate. Where unusual or
unanticipated circumstances develop subsequent to the filing of a note
of issue and certificate of readiness which require additional pretrial
proceedings to prevent substantial prejudice, the court, upon motion
supported by affidavit, may grant permission to conduct such necessary
proceedings.

Redmond v Jamaica Hosp. Med. Ctr., 2009 NY Slip Op 04042 (App. Div., 2nd, 2009)

In an action to recover damages for medical malpractice and wrongful
death, the plaintiff appeals from an order of the Supreme Court, Queens
County (O'Donoghue, J.), entered September 16, 2008, which denied her
motion to vacate an order of the same court dated April 10, 2008, sua
sponte, precluding her from conducting examinations before trial of the
defendants Kenneth Fretwell and Jeffrey Chan pursuant to CPLR 3126.

ORDERED that the order entered September 16, 2008, is reversed,
on the law and in the exercise of discretion, without costs or
disbursements, and the motion to vacate the order dated April 10, 2008,
is granted.

The record does not demonstrate that the plaintiff's counsel
willfully and contumaciously obstructed the progress of disclosure with
respect to the examinations before trial of the defendants Kenneth
Fretwell and Jeffrey Chan (hereinafter the defendant doctors) (see Maceno v Franklin Hosp. Med. Ctr., 14 AD3d 663, 664; Santigate v Linsalata, 304 AD2d 639, 641; Gorokhova v Belulovich,
267 AD2d 202, 203). Accordingly, the Supreme Court improvidently
exercised its discretion in, sua sponte, imposing the sanction of
preclusion with respect to the examination before trial of the
defendant doctors (see CPLR 3126; cf., Mahopac Ophthalmology, P.C. v Tarasevich, 21 AD3d 351, 352), and in denying the plaintiff's motion to vacate the order imposing that sanction.
[*2]

Meadow Lane Equities Corp. v Hill, 2009 NY Slip Op 04396 (App. Div., 2nd, 2009)

In an action, inter alia, for a permanent injunction, the defendants
appeal from so much of an order of the Supreme Court, Nassau County
(Phelan, J.), entered June 11, 2008, as denied their motion, inter
alia, to direct nonparty First New York Partners to preserve certain
evidence contained on electronic databases and to permit the
examination thereof.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly exercised its discretion in
determining that the defendants did not demonstrate unusual or
unanticipated circumstances warranting the discovery requested through
their motion (see 22 NYCRR 202.21[d]; Gomez v New York City Tr. Auth., 19 AD3d 366, 366-367; cf. Scanga v Family Practice Assoc. of Rockland, P.C., 41 AD3d 576, 576-577).

Caprio v 1025 Manhattan Ave. Corp., 2009 NY Slip Op 04367 (App. Div., 2nd, 2009)

In order to vacate their default in opposing the plaintiffs' motion
pursuant to CPLR 3126 to strike their answers, the defendants were
required to demonstrate a reasonable excuse for their default and a
meritorious defense to both the motion and the action (see CPLR 5015[a][1]; Nowell v NYU Med. Ctr., 55 AD3d 573; Raciti v Sands Point Nursing Home, 54 AD3d 1014; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392; Diamond v Vitucci, 36 AD3d 650).
The defendants failed to set forth a reasonable excuse for their
default in opposing the plaintiffs' motion. Although the defendants'
attorney claimed that he did not receive the plaintiffs' motion papers,
his mere denial of receipt was insufficient to rebut the proof that the
motions papers were properly mailed and the presumption of receipt
arising from that proof (see Kihl v Pfeffer, 94 NY2d 118, 122; [*2]Diamond v Vitucci, 36 AD3d 650; Philippi v Metropolitan Transp. Auth., 16 AD3d 654, 655; Sarva v Chakravorty, 14 AD3d 689; Platonov v Sciabarra, 305
AD2d 651). The defendants also failed to demonstrate a meritorious
defense to the motion to strike their answers by offering an adequate
explanation for their failure to fully and timely respond to the
plaintiffs' discovery demands and court directives requiring compliance
with such demands (see Howe v Jeremiah, 51 AD3d 975; Watson v Hall, 43 AD3d 435, 436; Devito v J & J Towing, Inc., 17
AD3d 624). Under these circumstances, the defendants' motion to vacate
the order dated February 7, 2008, should have been denied.

The bold is mine.

CPLR § 3126 and a long dissent

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Savin v Brooklyn Mar. Park Dev. Corp., 2009 NY Slip Op 03502 (App. Div., 2nd, 2009)

The Supreme Court also did not improvidently exercise its discretion in
denying that branch of the appellants' motion which was to vacate the
note of issue filed by the plaintiffs and extend their time to move for
summary judgment. The certificate of readiness contained no
misstatements or material errors and it was the appellants' own
failures to timely comply with court orders and discovery demands that
delayed the completion of discovery (see Lynch v Vollono, 6 AD3d 505; Ford v J.R.D. Mgt. Corp., 238 AD2d 307; Mardiros v Ghaly, 206 AD2d 413, 414).

The bold is mine.

Gibbs v St. Barnabas Hosp., 2009 NY Slip Op 03441(App. Div., 1st, 2009)

The record reflects that defendant Vinces moved to compel plaintiff
to provide a bill of particulars. This motion was withdrawn when
plaintiff served a bill of particulars. Subsequently, Vinces apparently
became dissatisfied with the bill of particulars plaintiff provided to
him. Hence, at a preliminary conference held after service of the bill
of particulars, plaintiff was ordered to provide a supplemental bill of
particulars. Plaintiff does assert that he should have insisted that he
not be required to serve a supplemental bill until after the completion
of discovery, since he was hard-pressed to further particularize his
contentions at that point. In any event, when a supplemental bill was
not furnished according to the schedule set forth in the preliminary
conference order, defendant moved again in that regard, which motion
resulted in the conditional order of preclusion under review.
[*2]

While it is true that
plaintiff did not timely comply with the court-ordered deadlines, the
delay was not lengthy, and defendant Vinces cannot claim prejudice
because of the tardy supplemental bill of particulars that plaintiff
ultimately furnished (see Marks v Vigo, 303 AD2d 306 [2003]).
There is no evidence that plaintiff's inaction was willful,
contumacious, or the result of bad faith. As a result, striking the
complaint as against Vinces would have been an overly drastic remedy
for plaintiff's delay in complying with discovery (see Cooper v Shepherd, 280 AD2d 337 [2001]). That the Court of Appeals in Wilson v Galicia Contr. & Restoration Corp.
(10 NY3d 827 [2008]) upheld Supreme Court's enforcement of an order of
preclusion does not mean that Supreme Court's determination in this
case not to enforce such an order constituted such an abuse of
discretion as to warrant reversal.

McGUIRE, J. (dissenting)

The order on appeal granting defendant Vinces's motion to enforce a
conditional order precluding plaintiff from offering certain evidence
at trial to the extent of imposing a $500 disclosure sanction against
plaintiff should be modified, the conditional order, which became
absolute, should be enforced and the complaint as against Vinces should
be dismissed. Accordingly, I dissent.

Continue reading “CPLR § 3126 and a long dissent”