Opinion
CV-713286-19/BX
08-28-2020
ALL CITY FAMILY HEALTHCARE CENTER a/a/o Gopal Persaud, Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant.
Law Offices of Cohen & Jaffe, LLP, New York City (Tricia C. Smith, Esq., of counsel), for plaintiff Goldberg Miller & Rubin, P.C., New York City (Timothy R. Bishop, Esq., of counsel), for defendant
Law Offices of Cohen & Jaffe, LLP, New York City (Tricia C. Smith, Esq., of counsel), for plaintiff
Goldberg Miller & Rubin, P.C., New York City (Timothy R. Bishop, Esq., of counsel), for defendant
Emily Morales-Minerva, J.
RECITATION, AS REQUIRED BY CPLR 2219 (A), OF THE PAPERS CONSIDERED IN THE REVIEW OF DEFENDANT'S MOTION TO VACATE THE NOTICE OF TRIAL AND STRIKE THE COMPLAINT.
Papers Numbered
Notice of Motion, affirmation of plaintiff's counsel and annexed exhibits A and B, filed January 23, 2020. 1
Affirmation of defendant's counsel and annexed exhibit A, dated May 28, 2020. 2
Reply Affirmation of plaintiff's counsel, dated June 17, 2020. 3
In this action to recover assigned first-party benefits for medical services rendered (see Insurance Law § 5101, et seq. ), defendant State Farm Fire and Casualty Company (defendant) moves for an order vacating the notice of trial of plaintiff All City Family Healthcare Center a/a/o Gopal Persaud (plaintiff), pursuant to Uniform Rules for New York City Civil Court ( 22 NYCRR) 208.17 (c), and striking C21 Acupuncture's complaint, pursuant to CPLR § 3126 (3). In the alternative, defendant moves for an order striking the notice of trial and compelling plaintiff's compliance with disclosure, pursuant to CPLR 3124. Defendant reasons that the notice of trial erroneously represents that discovery is complete and that plaintiff has failed to comply with defendant's discovery request.
Defendant relies on the Uniform Rules for the Trial Courts (22 NYCRR) 202.21 (e), governing Supreme Court and County Court. However, it appears that the Uniform Rules for New York City Civil Court (22 NYCRR) 208.17 (c) is applicable. Section 208.17 (c) provides: "Within 20 days after service [of notice of trial], any party may move to strike the action from the calendar or to keep it from being placed thereon. The affidavit in support of the application must specify the reason the action is not entitled to be on the calendar."
CPLR 3126 states: "If any party, ... refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed ... the court may make ... (3) an order striking out pleadings ... or dismissing the action ... or rendering a judgment by default against the disobedient party."
CPLR 3124 provides: "If a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response."
Plaintiff opposes the motion, contending that it fully complied with defendant's discovery demands.
For the reasons set forth below, the motion is denied in its entirety.
BACKGROUND
In August 2019, plaintiff All City Family Healthcare Center a/a/o Gopal K. Persaud (plaintiff) commenced this action for assigned first-party benefits against defendant State Farm Fire and Casualty Company (defendant). Defendant served plaintiff with an answer, a notice for discovery and inspection, a demand for verified interrogatories, and a notice to take deposition upon oral examination.
Plaintiff responded to the notice for discovery and inspection, providing defendant with objections to defendant's requests numbered 1 to 20, as "overbroad, unduly burdensome and irrelevant" to plaintiff's prima facie case (see affirmation of defendant's counsel, unmarked exhibit, at 4). While asserting such objections, plaintiff still provided defendant with the requested materials "to the extent such [was] in Plaintiff's possession" (id. ).
Defendant appears to concede that it received the documents, attached to the affirmation in opposition, as proof of plaintiff's compliance (see reply affirmation of plaintiff's counsel [contending that the response was "untimely" and "not sufficient in any event"] ).
Plaintiff also responded to defendant's notice to take a deposition upon oral examination, declining "[s]aid request [a]s premature" (id. , unmarked exhibit, at 1). Finally, plaintiff provided defendant with a response to interrogatories, including objections and references to the materials attached thereto, as being responsive (id. , unmarked exhibit, at 1-7).
The record does not include any mention by either party of when exactly plaintiff provided these responses to defendant. Plaintiff is silent on the date it furnished the responses, stating only that the "verified discovery responses [were] previously served upon defendant" (affirmation of defendant's counsel at 1 [emphasis in original] ). Defendant, for its part, asserts that the discovery responses were "untimely" without mention of the date plaintiff supplied disclosure (reply affirmation of plaintiff's counsel at 1).
On December 27, 2019, plaintiff served the subject notice of trial and certificate of readiness on defendant by mail and filed same with the court. Within 20 days thereafter, defendant served plaintiff with this motion to vacate the notice for failure to provide discovery, pursuant to 22 NYCRR 208.17 (c), and to strike plaintiff's complaint, pursuant to CPLR 3126 (3). In the alternative, defendant moves, for an order vacating the notice of trial and compelling plaintiff's discovery compliance, pursuant to CPLR 3124.
No dispute exists that the motion is timely. Plaintiff opposes the motion on the merits, contending that it complied with defendant's discovery demand and that discovery is complete. In reply, defendant generally states that plaintiff provided "untimely" discovery responses. Further, defendant asserts, in a conclusory fashion, that "the discovery provided is not sufficient......"
ANALYSIS
The Uniform Rules for New York City Civil Court ( 22 NYCRR) 208.17 (c) provides, in pertinent part, that "[w]ithin 20 days after service [of notice of trial], any party may move to strike the action from the calendar...." Where, as here, the motion to vacate is timely, the Court should grant vacatur if the "certificate of readiness falsely state[s] that there are no outstanding discovery requests" ( Tahir Med., P.C. v. Central Mut. Fire Ins. Co. , 42 Misc 3d 135(A) [App Term, 1st Dept 2014], citing 22 NYCRR 208.17 [c]; Nielsen v. New York State Dormitory Auth. , 84 AD3d 519, [1st Dept 2011] [affirming the granting of amotion to vacate a notice of issue in Supreme Court] and Savino v. Lewittes , 160 AD2d 176 [1st Dept 1990] [applying the Uniform Rules for Trial Courts ( 22 NYCRR) 202.21 (e), which provides that a court may vacate a notice of issue where a material fact in the certificate of readiness is incorrect]; see also BS Kings County Med., P.C. v. State Farm Mut. Auto Ins. Co. , 2020 NY Misc. LEXIS 4374, * 3, 2020 NY Slip Op 20200, ** 2 [Civ Ct Bronx County [2020] [granting a motion to vacate notice of trial, pursuant to 22 NYCRR 208.17 ] ).
The certificate of readiness at bar states that "[d]iscovery proceedings now known to be necessary [are] completed" and that "[t]here are no outstanding requests for discovery." Defendant, while generally stating that these statements are false, does not articulate specifically how the subject discovery responses are deficient for purposes of the Court finding erroneous plaintiff's declaration that no outstanding discovery requests exist.
Further, the record is devoid of any correspondence or other documentation between the parties, indicating that defendant ever informed plaintiff that it lacked material responses to its discovery requests. Defendant neither moved to compel plaintiff to provide more responsive answers (see CPLR 3124 ) nor moved to dismiss the complaint (see CPLR 3126 ), prior to plaintiff serving the notice of trial. Given the scant record, and conclusory nature of defendant's contentions, the court finds no ground upon which to grant this motion to vacate the notice of trial.
The Court recognizes that the result here should arguably be different if plaintiff provided discovery to defendant after the filing of this motion to vacate the notice of trial. In the event that the Court misapprehended that defendant received the discovery responses prior to the filing of the notice, defendant has the viable option to file a motion to reargue (see CPLR 2221 [d] [2] [setting forth the standard for re-argument and renewal).
Defendant's motion—made here in the first instance—for an order dismissing the complaint is also unavailing. CPLR 3126 (3), governs penalties for refusal to comply with an order or refusal to disclose. The statute provides that—when a party "refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed"—the court may make any orders in response "as are just...." Such orders include resolving any disputed issue in favor of the party seeking discovery, precluding the disobedient party from offering evidence or witnesses or defending certain claims or defenses, striking a party's pleadings, staying or dismissing the action, or granting a default judgment to the party seeking discovery (see CPLR 3126 [1-3] ).
The court has discretion to determine the appropriate discovery sanction (e.g. Spira v. Antoine , 191 AD2d 219, 219 [1st Dept 1993] [holding that "it generally is within the discretion of the motion court to determine the appropriate penalty to be imposed against an offending party"] ). However, preclusion and striking pleadings are "drastic sanction[s]," and the court should not grant them except where a party's behavior has been "willful, contumacious or in bad faith" ( Perez v. New York City Tr. Auth. , 73 AD3d 529, 530 [1st Dept 2010] ; see also Holliday v. Jones , 36 AD3d 557, 557-58 [1st Dept 2007] [preclusion requires "that the party's failure to comply with a disclosure order was willful, deliberate and contumacious"] ). Typically, a party behaves willfully and contumaciously where it ignores court orders or it delays in complying with court orders for long periods of time without excuse (e.g. Northern Leasing Sys., Inc. v. Estate of Turner , 82 AD3d 490, 490 [1st Dept 2011] ).
Here, there are no discovery orders in effect and no previous warnings given to plaintiff about plaintiff's response to defendant's discovery demands. Defendant waited until after the notice of trial to make its first request for an order to compel disclosure. Further, nothing in the record indicates that defendant ever informed plaintiff that it rejected plaintiff's stated objections to certain discovery requests or that defendant informed plaintiff that the discovery response was insufficient, before filing this motion.
Therefore, no basis exists for the Court to determine that plaintiff conducted discovery in a manner that was deliberate, contumacious, or in bad faith for purposes of striking the complaint (see e.g. Michaluk v. New York City Health and Hosps. Corp. , 169 AD3d 496, 496 [1st Dept 2019] [finding lack of evidence that a delay was willful, contumacious or in bad faith were the delay was due to counsel's injury and, among other things, the defendant never sought to compel discovery]; W & W Glass, LLC v. 1113 York Ave. Realty Co. LLC , 83 AD3d 438, 438 [1st Dept 2011] [holding the record did not establish that the defendant's failure to comply with discovery obligations was willful, or in bad faith where there were no prior motions to compel disclosure] ).
Defendant's motion for an order mandating plaintiff to comply with defendant's discovery requests also fails to meet the requisite burden. Pursuant to CPLR 3124, "[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order... the party seeking disclosure may move to compel compliance or a response." To prevail on its motion, defendant must satisfy the threshold requirement of demonstrating that the disclosure sought is "material and necessary" ( CPLR 3101 [a] [providing generally that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action"]; see also Forman v. Henkin , 30 NY3d 656, 661 [2018, DiFiore, Ch. J.] [explaining the standard set forth in CPLR 3101 [a] ).
As the Court of Appeals has emphasized, the test of what is "material and necessary" is one of "usefulness and reason" ( Forman , 30 NY3d at 661, quoting Allen v. Crowell-Collier Publ. Co. , 21 NY2d 403, 406 [1968], citing Andon v. 302-304 Mott St. Assoc. , 94 NY2d 740, 746 [2000] ). The party seeking discovery must show that the request is reasonably calculated to yield information "relevant" to the controversy ( Foreman , 30 NY3d at 661 ; see also Matter of Kapon v. Koch , 23 NY3d 32, 37-38 [2014] [concluding that that the First and Fourth Departments appropriately adopted a "material and necessary" standard that permits discovery of facts relevant to the prosecution or defense of an action] ).
Not detailing what is lacking in the responses and how such is relevant to the action or defense cannot be enough to satisfy the threshold requirement, even when considering our "state's policy of liberal discovery" (Foreman , 30 NY3d at 38). Permitting the opposite risks the requisite burden being swallowed whole.
Here, the defendant states broadly that plaintiff's "responses are not to the discovery demands" and that plaintiff "is required to answer... basic questions that relate to the heart of the dispute between the parties" (reply affirmation of plaintiff's counsel at 2). The record includes no more thorough articulation of what remains outstanding and why it is relevant to the dispute. Thus, the court declines the application to compel disclosure.
Accordingly, it is
ORDERED that defendant's motion to vacate the notice of trial is denied; and it is further
ORDERED that defendant's motion to dismiss the complaint or in the alternative compel plaintiff's compliance with discovery is also denied.
This constitutes the Decision and Order of the Court.