Opinion
# 2017-015-219 Claim No. 122521 Motion No. M-89438
03-17-2017
CHANDRABHUSHAN ANAND v. THE STATE OF NEW YORK
Chandrabhushan Anand, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Michael C. Rizzo, Esquire Assistant Attorney General
Synopsis
Defendant's motion to dismiss the claim for failure to prosecute pursuant to CPLR 3216 and Court of Claims Act § 19 (1) and for entry of a default judgment on its counterclaim was partially granted. That branch of defendant's motion which sought dismissal of the claim for failure to prosecute was granted outright; however, that branch of defendant's motion which sought a default judgment on its counterclaim was conditionally granted unless claimant appeared for an examination before trial within a certain time period.
Case information
| UID: | 2017-015-219 |
| Claimant(s): | CHANDRABHUSHAN ANAND |
| Claimant short name: | ANAND |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122521 |
| Motion number(s): | M-89438 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Chandrabhushan Anand, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Michael C. Rizzo, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 17, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the instant claim for failure to prosecute pursuant to CPLR 3216 (b) (3) and for a default judgment on its counterclaim pursuant to CPLR 3126 (3).
Clamant is an accountant formerly employed by The New York State Department of Housing and Community Renewal (DHCR). On March 18, 2013 he filed a claim seeking payment for wages earned in excess of 40 hours per week at the overtime rate of time and one-half, certain travel expenses, and "liquidated damages" under the Fair Labor Standards Act (27 USC §§ 201, et seq). Defendant's answer to the claim included a counterclaim seeking damages for the unauthorized use of a state-issued credit card. Following joinder of issue, a telephone conference was conducted in which the parties agreed to complete discovery and file the note of issue and certificate of readiness for trial on or before June 4, 2014. At the claimant's request, the cut-off date for the completion of discovery and filing of the note of issue was extended three times, to August 6, 2014, October 8, 2014 and February 1, 2015. By Decision and Order filed April 15, 2015, claimant's motion for a discovery conference was granted and defendant's motion to dismiss for lack of jurisdiction was denied. On May 20, 2015, a discovery conference was held which claimant attended by telephone from India. Defense counsel advised the Court that he had responded to claimant's document demands and claimant indicated that he would review the documents upon his return from India. By letter dated July 16, 2015, defense counsel requested a conference as claimant allegedly had failed to attend examinations before trial on June 9, 2015 and July 14, 2015. A telephone conference was scheduled for July 29, 2015. However, claimant telephoned chambers moments before the start of the telephone conference to report he was ill and could not participate in the conference. When claimant was informed that the conference would be brief and to stay on the line, claimant unilaterally terminated the call. On August 7, 2015, defendant filed a motion to compel claimant to appear for an examination before trial (NYSCEF Doc No 15). By letter to the Court dated August 17, 2015, claimant informed the Court of his address change to India. Defendant's motion to compel claimant's deposition was twice adjourned, allegedly due to claimant's poor health while he resided in India. By Decision and Order dated December 17, 2015 (filed March 23, 2016), defendant's motion to compel an examination before trial of the claimant was granted and claimant was Ordered to make himself available for an examination before trial within 45 days of the date the Decision and Order was filed (i.e., May 7, 2016). By Notice of Motion filed December 21, 2015, claimant moved for summary judgment or partial summary judgment in his favor, thereby automatically staying discovery pursuant to CPLR 3214 (b). By letter dated January 7, 2016, claimant notified the Court of his change of address back to New York (NYSCEF Doc. No. 34) and claimant filed a motion on April 8, 2016 to stay discovery and dismiss the defendant's counterclaim (NYSCEF Doc. No. 35). Claimant's motion for summary judgment was denied by Decision and Order dated April 13, 2016 (filed April 26, 2016); (NYSCEF Doc. No. 34). By letter dated May 17, 2016, claimant requested a telephone conference to resolve outstanding discovery matters. On May 26, 2016 a conference was held for the purpose of advising the claimant that discovery was stayed pending the determination of his most recently filed motion to dismiss defendant's counterclaim. The claimant, once again, however, unilaterally terminated the call and requested, by letter dated May 27, 2016 (NYSCEF Doc. No. 44), that the Judge, rather than his law clerk, preside at the conference. By letter dated May 31, 2016, claimant was advised that the case was stayed pending a determination of his most recently filed dismissal motion (NYSCEF Doc. No. 46). By letter dated June 3, 2016, claimant requested permission to amend his pending motion, which was denied because the return date had passed. By letter dated June 8, 2016, claimant withdrew his previously filed motion to dismiss defendant's counterclaim for lack of jurisdiction (NYSCEF Doc. No. 49). On July 14, 2016, the Court served claimant with a 90-day demand that he resume prosecution of this action and serve and file the note of issue within 90 days. The demand was served by both certified mail, return receipt requested and ordinary mail. While the certified mailing was returned, the ordinary mailing was not. The Court's 90-day demand noted that:
"By Preliminary Conference Order dated June 7, 2013, claimant was directed to file a note of issue and certificate of readiness no later than June 4, 2014. The date to file the note of issue was extended by Orders dated June 3, 2014, August 11, 2014 and October 9, 2014. In the Order dated October 9, 2014 claimant was directed to file a note of issue by February 1, 2015. As of this date a note of issue has not been filed with the Clerk of the Court. Such conduct constitutes a general neglect to proceed" (NYSCEF Doc. No. 53).
By notice of motion filed July 19, 2016, claimant, once again, moved to dismiss defendant's counterclaim (NYSCEF Doc. No. 54). By letter dated July 19, 2016, claimant requested that the Court withdraw its 90-day demand (NYSCEF Doc. No. 80) and defense counsel requested a conference to discuss whether or not the case was stayed pursuant to CPLR 3214 (b) (NYSCEF Doc. No. 79). A conference was held on July 21, 2016 and the automatic stay imposed pursuant to CPLR 3214 (b) was lifted by Order dated July 21, 2016 (NYSCEF Doc. No. 84). During the conference, claimant complained that the document discovery defendant provided in the summer of 2015 was inadequate, and he was instructed to make a motion. No such motion was ever filed. Claimant also advised that he would be returning to the United States from India on August 21, 2016 and would appear for an examination before trial in September 2016. Defense counsel provided claimant with eight dates in September on which his deposition could be held and the parties agreed upon September 30, 2016 (defendant's Exhibit 9). By letter to the Court dated September 27, 2016 (NYSCEF Doc. No. 93), claimant stated, in pertinent part, the following:
By Decision and Order filed November 29, 2016 claimant's motion to dismiss defendant's counterclaim was denied (NYSCEF Doc. No. 111).
I was directed to file the Note of Issue by October 17, 2016.
I regret to state that due to my poor health I am unable to depose on
September 30, 2016 or file the Note of Issue by the date indicated" (NYSCEF Doc. No. 93).
By letter dated September 28, 2016, defendant agreed to an adjournment of the claimant's deposition on the condition that it be concluded prior to the due date for the filing of the note of issue (NYSCEF Doc. No. 96, defendant's Exhibit 10). Claimant did not submit to the deposition and on November 1, 2016, the defendant filed the instant motion. On February 17, 2017, claimant filed a note of issue indicating that "[d]iscovery proceedings now known to be necessary completed" (NYSCEF Doc. No. 122). A motion to strike the note of issue is currently pending.
Two of the claimant's requests to adjourn the instant motion on account of illness were granted with the provision that "no further adjournments would be permitted" (NYSCEF Doc. No. 115). Claimant's third request for an adjournment was objected to by the defendant and denied by the court (NYSCEF Doc. Nos. 117 and 119). Claimant's opposition papers to the instant motion were not filed until 6:09 p.m. on January 4, 2017, which was the return date of the motion. Although claimant's opposition was untimely, it will be considered since defendant submitted a reply.
The claimant's failure to serve and file the Note of Issue and Certificate of Readiness for Trial within 90 days as demanded, or otherwise move to either vacate the demand or extend his time to file the Note of Issue, requires that the claim be dismissed for failure to prosecute (CPLR 3216; Court of Claims Act § 19 [3]; Baczkowski v D. A. Collins Constr. Co., 89 NY2d 499, 503-504 [1997]; Stuckey v Westchester County Dept. of Transp., 298 AD2d 577 [2d Dept 2002], lv denied 100 NY2d 502 [2003]). Moreover, in light of claimant's nearly four-year delay in the prosecution of this claim, the Court finds that the claimant has neglected and abandoned his claim thereby warranting the Court's exercise of its "wholly discretionary" authority to dismiss the claim for failure to prosecute pursuant to Court of Claims Act § 19 (3) (Dickan v State of New York, 16 AD3d 760, 761 [3d Dept 2005]; Randolph v State of New York, UID No. 2013-009-005 [Ct Cl, Midey, J., April 3, 2013]).
Turning to defendant's request for a default judgment on its counterclaim, CPLR 3126 (3) provides that when a discovery order is willfully disobeyed a court may, inter alia, render a judgment by default against the disobedient party. "The nature and degree of the penalty is a matter lying within the sound discretion of the court" (Brandi v Chan, 151 AD2d 853 [3d Dept 1989]). Where a party disobeys a court order and by his conduct frustrates the disclosure scheme provided by the CPLR, dismissal of the complaint or entry of a default judgment is within the broad discretion of the trial court (see Zletz v Wetanson, 67 NY2d 711, 713 [1986]; Reynolds Sec., Inc. v Underwriters Bank & Trust Co., 44 NY2d 568, 572 [1978]; Matter of Groton Community Health Care Ctr., Inc. v Bevier, 144 AD3d 1553 [4th Dept 2016]; G.M. Data Corp. v Potato Farms, LLC., 95 AD3d 592 [1st Dept 2012]). Here, claimant engaged in conduct that was designed to frustrate the discovery process by ignoring not only defendant's multiple requests to appear for an examination before trial but a Court Order directing him to do so.
By Decision and Order dated December 17, 2015 (filed March 23, 2016) claimant was Ordered to make himself available for an examination before trial within 45 days of the date the Decision and Order was filed. Despite repeated opportunities to do so, the claimant failed to comply with the Order. Claimant's willful failure to submit to an examination before trial despite being given every opportunity to do so warrants that defendant's motion for a default judgment on its counterclaim be granted. Nevertheless, inasmuch as public policy favors the disposition of cases on their merits (State of New York v Bayramov, 98 AD3d 811, 812 [3d Dept 2012]), the Court will allow claimant one last opportunity to avoid a default judgment by granting defendant's motion for default judgment on its counterclaim unless claimant appears for an examination before trial, to be examined with regard only to issues germane to the counterclaim, within 30 days of the date this Decision and Order is entered.
Based on the foregoing, that branch of defendant's motion seeking dismissal of the claim is granted and the claim is dismissed. That branch of defendant's motion seeking a default judgment against the claimant on its counterclaim is granted unless claimant appears for an examination before trial within 30 days of the date this Decision and Order is entered. In the event claimant fails to appear for an examination before trial within the time permitted, defense counsel is directed to notify the Court so that an inquest on the issue of damages may be scheduled.
March 17, 2017
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers:
1. Notice of motion dated November 1, 2016; 2. Affidavit of Michael C. Rizzo sworn to November 1, 2016 with exhibits; 3. Affidavit of Chandrabhushan Anand sworn to January 4, 2017; 4. Reply affidavit of Michael C. Rizzo sworn to January 5, 2017.