Opinion
Index Number: 156299/2013
04-11-2016
Sequence Number: 003
Decision and Order
Arthur F. Engoron, Justice In compliance with CPLR 2219(a), this Court states that the following papers were used on defendants' motion, pursuant to CPLR 3126 and 3124, to strike and/or compel, and, pursuant to 22 NYCRR § 130-1.1(a), for sanctions:
Papers Numbered: | |
---|---|
Notice of Motion - Affirmation - Exhibits | 1 |
Affirmation in Opposition of Motion | 2 |
Reply Affirmation - Exhibits | 3 |
I. Defendants are not Entitled to An Order Striking Plaintiff's Complaint
Pursuant to CPLR 3126, this Court can, in its discretion, sanction plaintiff for his failure to comply with discovery. However, in order to be entitled to the drastic relief of striking plaintiff's complaint, defendants must conclusively demonstrate that plaintiff's failure to attend the scheduled IMEs and to respond to defendants' reimbursement request for no-show fees was willful, contumacious, or due to bad faith. The burden then shifts to plaintiff to demonstrate a reasonable excuse for the noncompliance. See Reidel v Ryder TRS. Inc., 13 AD3d 170, 171 (1st Dept 2004) ("A court may strike a [pleading] only when the moving party establishes a clear showing that the failure to comply is willful, contumacious or in bad faith. The burden then shifts to the nonmoving party to demonstrate a reasonable excuse") (internal quotations omitted). Although the Court has the discretion to determine the nature and degree of the penalty to impose for failure to comply with discovery orders, it is well-settled that penalizing a noncompliant party by striking its pleading is extreme, and should only be levied where (1) failure has been willful and contumacious; and (2) that such behavior can be fairly attributed to plaintiff, rather than plaintiff's counsel. See Lowitt v Burton I. Korelitz, M.D., P.C., 152 AD2d 506, 507 (1st Dept 1989) ("Striking a plaintiff's pleading is a drastic remedy and is inappropriate when the contumacious conduct or noncompliance is attributable to [plaintiff's] counsel rather than to the [plaintiff]"); see also Stathoudakes v Kelmar Contracting Corp., 147 AD2d 690 (2d Dept 1989) (noncompliant party's counsel "should be afforded another chance to provide the requested documentary information or, if they cannot, to supply a satisfactory explanation of their efforts to obtain that information"). Here, there is insufficient evidence to demonstrate that (1) plaintiff's conduct was "willful and contumacious," or (2) that the failure to comply can fairly be attributed to plaintiff, rather than plaintiff's counsel. The Court did not find on defendants' March 2015 motion to strike and/or compel that plaintiff's conduct rose to the level of "willful and contumacious," even though, at that time, plaintiff had missed multiple IMEs, and defendants had already incurred no-show fees. Rather, upon defendants' counsel's consent that plaintiff be afforded another chance to attend the IMEs, plaintiff did in fact submit to all requested IMEs. Moreover, this Court has not yet directed plaintiff or its counsel to reimburse defendants for no-show fees, so plaintiff's alleged failure to do so is not-and cannot be-willful or contumacious. Accordingly, defendants are not entitled to an order, pursuant to CPLR 3126, striking plaintiff's complaint based on his failure to reimburse defendants for incurred no-show fees.
II. Defendants are Entitled to Reimbursement of All Incurred No-Show Fees, and a Conditional Order of Preclusion
Defendants are entitled to a full reimbursement for all no-show fees defendants' counsel incurred for plaintiff's failure to attend scheduled IMEs. The Affidavits of Service indicate that all Notices of Expert Designation, including Amended Notices of Expert Designation, were actually mailed to plaintiff's counsel, Bader Yakaitis & Nonnemacher, LLP, at its address, 1430 Broadway, Suite 1802, New York, NY 10018, giving rise to a presumption of receipt. See American Tr. Ins. Co. v Solorzano, 108 AD3d 449 (1st Dept 2013) (court found there was a proper mailing because plaintiff submitted "competent evidence of the mailing of the notices scheduling the injured [party's] independent medical examination and of [plaintiff's] failure to appear"); American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 (1st Dept 2013) ("A properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption"). Plaintiff failed to rebut the presumption of receipt of the IME notices. See Badio v Liberty Mut. Fire Ins. Co., supra at 231. Mere denial of receipt is insufficient. Plaintiff's claim that defendants sent the IME notices to the wrong address is unavailing. If, indeed, plaintiff's counsel changed addresses in the midst of this litigation, plaintiff should have notified defendants of the address change. Not only did plaintiff not do so, but according to the litigation back of plaintiff's opposition papers, its counsel's office is located at "1430 Broadway, Suite 1802, New York, NY 10018," the exact address to which defendants' counsel had sent all notices. Consequently, plaintiff has failed to show as a reasonable excuse for his no-show at the IMEs, and, subsequently, why he should not be responsible for no-show fees that defendants incurred. Defendants' counsel demonstrated that it incurred the following no-show fees for the three IMEs plaintiff failed to attend: (1) Dr. Grad charged $350, and Star Interpreting charged $300, for plaintiff's failure to attend the March 30, 2015 IME; (2) Dr. Grad charged $350, and Star Interpreting charged $300, for plaintiff's failure to attend the June 1, 2015 IME; and (3) Dr. Montalbano charged $800, and Star Interpreting charged $300, for plaintiff's failure to attend the April 6, 2015 IME. In opposition, plaintiff argues that $2,600 in cumulative no-show fees is excessive, arbitrary, and inflated. However, plaintiff has cited no convincing legal authority as to why these fees are not reasonable on this record. See Adams v Deloreto, 272 AD2d 875 (4th Dept 2000) ("Supreme Court did not abuse its discretion in assessing costs of $1,000 upon plaintiff); Renford v Lizardo, 104 AD2d 717, 718 (4th Dept 1984) (where plaintiff failed to keep appointments for two medical examinations, defendant's counsel was billed $350 for physician's lost time; court awarded full reimbursement); see also Wolford v Cerrone, 184 AD2d 833, 834 (3d Dept 1992) ("Supreme Court's direction that plaintiff's pay for the cost of the two missed physical exams was [not] beyond the court's authority to impose"); Flynn v Debonis, 246 AD2d 852 (3d Dept 1998) ("In light of plaintiff's conduct during discovery and [his] failure to submit to two IMEs, we find no abuse of discretion in Supreme Court's order that plaintiff appear for a physical examination and reimburse defense counsel for charges assessed by defendants' physician"). Plaintiff's argument that these doctors may have had other appointments on the aforementioned IME dates, and, therefore, plaintiff should not be charged fees, is unavailing. In view of the foregoing, defendants' request for reimbursement of incurred no-show fees is neither excessive nor arbitrary, and is, therefore, granted. Plaintiff's counsel is directed to reimburse defendants' counsel $2,600 for the no-show fees it incurred, as a result of plaintiff's failure to attend the scheduled IMEs, within 30 days of the date of this order. Plaintiff's failure to reimburse defendants' counsel as required herein may result in plaintiff being precluded from testifying at the time of trial as to damages. See CPLR 3126(2). Pursuant to 22 NYCRR § 130-1.1(a), the Court, in its discretion, may (1) award, to any party or attorney, costs in the form of reimbursement for actual expenses reasonably incurred, and reasonable attorneys' fees, resulting from frivolous conduct; or alternatively (2) impose financial sanctions upon any party or attorney who engages in frivolous conduct. See generally Freidman v Fayenson, 41 Misc3d 1236(A), *14 (Sup Ct, New York County 2013) ("In determining whether to award sanctions, the First Department has considered whether there is a 'continuous pattern of conduct'"). Conduct is "frivolous" if: (a) it is completely without merit in law, and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (b) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (c) it asserts material factual statements that are false. See 22 NYCRR § 130-1.1(a). In determining whether conduct is "frivolous," courts shall consider (i) circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (ii) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party. Id. Defendants are not entitled to sanction in the form of reimbursement of costs and attorneys' fees on this motion. As noted above, plaintiff's failure to appear at IMEs was occasioned by his counsel's law office failure and not by plaintiff's own refusal to voluntarily cooperate in this litigation. Indeed, the Court notes that plaintiff appeared for his deposition and has since appeared for all IMEs. Moreover, plaintiff's counsel's argument that the no-show fees are excessive is not frivolous, nor meant to harass or delay resolution of this action. To the contrary, IMEs having been conducted and defendants not having been prejudiced, there appears, on this record, to be no reason why discovery cannot be expeditiously completed. Conclusion Defendants' motion is hereby denied in part and granted in part. Defendants' motion to strike the complaint and for sanctions is denied; defendants' motion to compel plaintiff to pay no-show fees is granted. Plaintiff is hereby directed to pay defendants' counsel the sum of $2,600 within 30 days of the date of this order, or be precluded from testifying as to damages at the time of trial. Dated: April 11, 2016
/s/_________
Arthur F. Engoron, J.S.C.