Opinion
13237/04.
Decided July 15, 2010.
Defendant, Karen Jantzer, moves in the above captioned partition action for an order of this Court for the following relief: requiring plaintiffs to post security for costs of the instant proceeding on the basis that they are out of state residents pursuant to CPLR § 8501; staying the instant proceedings pending the posting of the security pursuant to CPLR § 8502; conditionally dismissing the Complaint and the instant proceeding in the event plaintiffs default in posting the security pursuant to CPLR § 8503; granting a default judgment against plaintiffs on the basis of their failure to answer defendant's second counterclaim pursuant to CPLR § 3215; dismissing plaintiffs' Complaint and the instant proceeding with prejudice on the basis of plaintiffs' willful default in complying with pretrial discovery demands pursuant to CPLR § 3126, precluding plaintiffs from offering evidence at trial based on admissions of fact made during the instant proceeding and granting summary judgment based on such admissions of fact; granting Summary Judgment in favor of the defendant regarding liability as alleged in her second counterclaim pursuant to CPLR § 3212(a)(b); extending the Order of the Hon. Daniel Martin to allow defendant to conduct further discovery on the basis that the Plaintiffs breached a stipulation pursuant to CPLR § 2004; and designating the plaintiffs' attorney as agent to accept service of subpoenas on behalf of the non resident plaintiffs and permitting services of subpoenas to be effected by e-mail, facsimile, or mail pursuant to CPLR § 308(5).
Motion is granted only to the extent that the plaintiffs' attorney is designated as the agent to accept service of a trial subpoena on behalf of plaintiffs. The remainder of defendant's motion is denied. It is noted that the motion seeking an order requiring the posting of security pursuant to CPLR 8501 and staying the instant proceeding pending such posting pursuant to CPLR § 8502, has been granted by this Court on or about April 30, 2010.
FACTS
Louise Colwell, the mother of plaintiffs Robert Colwell, Richard Colwell, and Penelope Eckstein and defendant owned an undivided fee interest in the improved real property located at 6 Roxbury Lane, Massapequa, New York, in the County of Nassau. She was married to Richard Colwell, who predeceased her on January 27, 1990. On April 6, 1992, she created a life estate by deed, duly recorded in the Nassau County Clerk's Office, Liber 10276, Page 0723, in that she reserved title for her natural life then transferring title to her children in equal shares. Louise Colwell's life estate terminated upon her death on September 8, 2003. Penelope Eckstein died intestate on November 21, 1995, thus predeceasing Louise Colwell. She was survived by her husband Norbert Eckstein, who died on September 27, 2005, and their surviving children, Victoria Welton, Donna Wilson, Rhonda Gehlke and Jacqueline Coughlin. At present, Robert Colwell, Karen Jantzer and Richard Colwell each own an undivided 25% fee interest in the subject real property while Victoria Welton, Donna Wilson, Rhonda Gehlke and Jacqueline Coughlin may each be entitled to an undivided 6.25 % interest.
Penelope Eckstein predeceased Louise Colwell and her real property interest is represented by her children and plaintiffs Donna Wilson, Rhonda Gelke, Jacqueline Coughlin, and Victoria Welton.
Plaintiffs allege that defendant, who has been residing in the subject premises since 2003, has been collecting and receiving income from the rental of the property. She has refused to reveal the amount of these proceeds and/or equally distribute same to the plaintiffs. Defendant alleges that she has resided in the residence since 2002 and that she has, from the time period of 1992 and up until Louise Colwell's death, undertook all aspects of care and management regarding Louise Colwell and the property. She further alleges that she, pursuant to an oral agreement with her siblings, expended time, energy, and her own finances in exchange for their financial compensation. Defendant further alleges that plaintiffs have breached this agreement and upon such breach, she is equitably entitled to financial reimbursement and redress. Defendant also argues that she has continuously resided in the premises for over ten years and is entitled to 100% ownership in fee on the basis of adverse possession.
Plaintiffs commenced ths instant partition action and defendant counterclaimed.
PROCEDURAL HISTORY
As the record indicates, the instant proceedings are contentious, particularly between the two counsel. As such, a recitation of the procedural history is in order. On or about September 22, 2004, plaintiffs filed this partition action by filing a Summons and Complaint with the Court. The issue was joined when defendant served a Verified Answer and counterclaims and combined Demands for Discovery on or about December 1, 2004. Plaintiffs responded to the Verified Answer and counterclaims and combined Discovery Demands on December 9, 2004. After several adjournments, a compliance conference was finally held on June 26, 2006 before the Hon. Daniel Martin. At a subsequent conference before this Court, the matter was stayed and marked off calendar on June 24, 2007. In April, 2008, plaintiffs retained new counsel, who was granted an Order by this Court in October, 2008, directing the former counsel to turn over the case file.
On or about March 3, 2009, the parties agreed and stipulated the following at a conference in this Court: that the defendant will re-serve her combined Discovery Demands upon plaintiffs' counsel on or before April 3, 2009; defendant will serve supplemental demands, if any, upon plaintiffs' counsel on or before April 3, 2009; plaintiffs will serve their combined Discovery Demands upon defendant's counsel on or before April 3, 2009; Responses to all demands to be served on or before May 15, 2009; Oral examinations, on notice, to be completed on or before June 30 2009; Plaintiffs may, at their option, amend their complaint, the same to be filed and served on or before March 24; and defendant may serve amended answer on or before April 3, 2009. On or about March 12, 2009, the stay was removed and the case was restored to the calendar.
Plaintiffs elected not to amend their Complaint while defendant served an amended Verified Answer and counterclaims and Interrogatories and Request for Production of Documents on April 4, 2009 and a second Verified Answer and counterclaims on April 29, 2009 upon plaintiffs' counsel. As the plaintiffs responded to some of defendant's Discovery Demands in December, 2004, they served answers to the remaining Discovery Demands and defendant's requests for interrogatories on or about May 20, 2009, and June 9, 2009 while responding to the amended Verified Answer and counterclaims on or about August 13, 2009. Defendant rejected plaintiffs' August 13, 2009 response as untimely.
On October 27, 2009, the parties appeared before the Hon. Daniel Martin and a Certification Order was issued by this Court certifying the matter ready for trial and directing plaintiffs to serve the Note of Issue upon defendant within 120 days of issuance of such Order. The Order also provided that Motions for Summary Judgment were to be filed within 60 days of filing of the Note of Issue. Plaintiffs served the Note of Issue on defendant on November 19, 2009 and filed the same with this Court on November 23, 2009. Defendant, in turn, served a Demand for a Jury Trial upon plaintiffs on or about December 9, 2009. On or about April 30, 2010, defendant filed the instant motion before this Court which included an ex parte application to stay these proceedings pending posting of security by the plaintiffs. As that application was granted the by Hon. Denise Sher, the instant matter is stayed as of this date.
DISCUSSION POSTING OF SECURITY PURSUANT TO § CPLR 8501, 8502, 8503
As the Hon. Denise Sher has granted defendant's ex parte application regarding the plaintiffs' posting of security, there is no need to further address this specific issue. However, the record indicates that the plaintiffs have made a good faith effort to comply with the Court's Order but were procedurally precluded from tendering the funds. In light of the foregoing, plaintiffs are directed to produce the security checks at the next Court date.
The purpose of the posting security is to assure that the defendant who is sued in this state will, if successful, at least be able to recoup his costs. See CPLR § 8501(1). Defendant's argument that this Court directed plaintiffs to "individually and personally" post security and plaintiffs' defaulted in performance by their counsel posting security on their behalf, is unavailing. The language in the Hon. Denise Sher's Order provides that ". . . this action . . . is hereby stayed pending the posting of security the costs in the amount fo $250.00 by each individual plaintiff for a total $1,500.00 . . ." The Order can be interpreted as emphasizing each plaintiffs' monetary obligation to the aggregate amount, as indicated by plaintiffs' attorney's attempt to tender six (6) different checks for each individual plaintiff. See Plaintiffs' Affirmation in Opposition of Order to Show Cause Exhibit "S". In addition, defendant provides no evidence that on May 6, 2010, plaintiffs' counsel was denied permission to post bond on behalf of his clients.
Defendant's reference to Judiciary Law § 488 as support for the foregoing argument is misplaced. The statute states in relevant part: ". . . An attorney . . . shall not: take an assignment of a bond . . . with the intent and for the purpose of bringing an action thereon. . . ." This section is violated only if plaintiffs' counsel posted security with the intent of commencing a suit. The instant proceeding has already been commenced and the statute is therefore inapplicable. See Sprung v. Jaffe, 3 NY2d 539, 169 NYS2d 456 (1957); Lost Lots Associates, Ltd. v. Bruyn, 68 AD2d 1006, 415 NYS2d 99 (3d Dept. 1979).
Regarding defendant's motion to dismiss plaintiffs' Complaint and the entire proceeding in the event that they fail to post bond, such request is premature. Further, the instant motion was conformed and signed on April 30, 2010 and the Court required posting of security on or before June 7, 2010. Plaintiffs made a good faith effort by their attempt to post security on May 26, 2010. Even if plaintiffs failed to post security, the Court will consider whether the default was excusable, whether the other party has been prejudiced by failure to post the security, plaintiffs' intention to pursue the matter and the length of time of such default. See Brodie v. Adolphus, 228 AD2d 919, 664 NYS2d 423 (3d Dept. 1996).
It is noted that the same counsel represented defendant since the commencement of this action in 2004 and did not make such an application until April, 2010. Defendant is hardly prejudiced by any alleged default in the posting of security. Further, the record indicates that plaintiffs have every intention of pursuing the instant matter. For the foregoing reasons, defendant's motion as to this issue, is denied.
FAILURE TO ANSWER SECOND COUNTERCLAIM
The terms of the March 3, 2009 stipulation set forth specific dates for the service of the amended pleadings. It is undisputed that defendant served her amended Verified Answer and counterclaim after the stipulated date of April 3, 2009. Further, defendant's subsequent amended Verified Answers and counterclaims were filed and served more than twenty (20) days after the serving and filing of the April 4, 2009 papers.
Pursuant to CPLR § 3025, a party may amend his or her pleading once without leave of court within twenty (20) days after its service, or any time before the period for responding to it expires, or within twenty (20) days after service of a pleading responding to it. Defendant did not amend her Verified Answer and counterclaim within the statutory or stipulated time period. It is noteworthy that defendant has not complied with the very time constraints that she holds against plaintiffs in her motion. Notwithstanding, plaintiffs did serve a response to defendant's amended Verified Answer without seeking an Order of this Court striking them as untimely.
Finally, it would not be an improvident exercise of discretion to determine that plaintiffs' Answer to defendant's Second Amended Answer and Counterclaim is timely served. The Court notes that plaintiffs' delay was one of relatively short duration, plaintiffs responded to defendant's initial Verified Answer and counterclaims in a timely manner, defendant's amendments do not assert any new facts or occurrences and are basically revisions in style as she reinserted paragraphs that she omitted in her prior amended Verified Answer; and defendant is hardly prejudiced by the delay in plaintiffs' response to her papers. See MMG Design, Inc. v. Melnick , 35 AD3d 823 , 826 NYS2d 718 (2d Dept 2006); J.P.R. Cafeteria, Inc. v. Kingsborough Community College of the City University of New York, 16 Misc 3d 1127(A), 847 NYS2d 902 (Kings County Sup. Ct. 2007); Jones v. Gelles, 140 AD2d 819, 529 NYS2d 200 (3d Dept. 1988). Accordingly, defendant's motion regarding this issue is denied.
FAILURE TO COMPLY WITH DISCOVERY DEMANDS
Defendant is not entitled to the dismissal of the complaint under CPLR § 3126(3) without first moving to compel the disclosure she seeks, and then providing an affirmation that she made a good faith effort to resolve the discovery dispute. See Holohan v. Amity Nissan Superstore, 2008 WL 2489500 (Nassau County Sup. Ct. 2008); Dennis v. City of New York, 304 AD2d 611, 758 NYS2d 661 (2d Dept. 2003); Charter One Bank, FSB v. Houston, 300 AD2d 429, 751 NYS2d 573 (2d Dept. 2002); Hegler v. Loews Roosevelt Field Cinemas, Inc., 280 AD2d 645, 720 NYS2d 844 (2d Dept. 2001); Barnes v. NYNEX, Inc., 274 AD2d 368, 711 NYS2d 893 (2d Dept. 2000). Defendant failed to demonstrate that any attempt was made to resolve this issue with plaintiffs. Further, while the nature and degree of the penalty to be imposed on a motion pursuant to CPLR § 3126 is a matter generally left to the discretion of the court, to invoke the drastic remedy of striking a pleading, a court must determine that the party's failure to comply with a disclosure order was the result of willful and contumacious conduct. See Holohan v. Amity Nissan Superstore, supra; Mangiapane v. Brookhaven Beach Health Related Facility, 305 AD2d 642, 759 NYS2d 890 (2d Dept. 2003); Patterson v. New York City Health and Hospitals Corp., 284 AD2d 516, 726 NYS2d 715 (2d Dept. 2001); Centerport Ins. Agency, Inc. v. Atlantic Fabricators of Rhode Island, Inc., 277 AD2d 414, 715 NYS2d 908 (2d Dept. 2000); Olmoz v. Town of Fishkill, 258 AD2d 447, 684 NYS2d 611 (2d Dept. 1999); Diel v. Rosenfeld , 12 AD3d 558 , 784 NYS2d 379 (2d Dept. 2004); Walter B. Melvin, Architects, LLC v. 24 Aqueduct Lane Condominium , 51 AD3d 784 , 857 NYS2d 697 (2d Dept. 2008). Defendant has not met her burden of demonstrating that plaintiffs' conduct was willful and contumacious. In addition, the foregoing cited cases address the lack of response on the part of the other party. Here, plaintiffs did respond to defendant's Discovery Demands. However, defendant maintains that such responses were basically insufficient.
Without addressing whether the information sought and requested by defendant was reasonable, it is undisputed that this case was certified ready for trial by this Court in October, 2009 and a Note of Issue was served upon defendant and filed in this Court in November, 2009. Moreover, the box on the Note of Issue form indicating that discovery had been completed was checked. Defendant did not object, nor did she make a motion to strike the Note of Issue. Defendant's only response was to serve a Demand for a Jury Trial upon plaintiffs.
After the filing of a Note of Issue, there are two separate and distinct statutory procedures regarding the conducting of further disclosure. The Uniform Rules for Trial Courts, particularly 22 NYCRR § 202.21 (d), provide in relevant part: ". . . [w]here 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." Further, 22 NYCRR § 202.21(e), provides, in relevant part: "[w]ithin 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect." See Audiovox Corp. v. Benyamini, 265 AD2d 135, 707 NYS2d 137 (2d Dept 2000).
Here, as it is well over twenty (20) days since defendant acquiesced to the statements set forth in the Note of Issue, defendant can only now conduct further discovery if she demonstrates special or unusual circumstances or unanticipated conditions subsequent to its filing. See Russell v. Bessen, 126 AD2d 716, 511 NYS2d 313 (2d Dept. 1987). Defendant has not met her burden, and in sum, her failure to make such a motion constitutes assent to the statements in the plaintiffs' Note of Issue. See Staud v. New York Life Insurance Company, 42 Misc 2d 538, 248 NYS2d 547 (Monroe County Sup. Ct. 1964); Sewell v. Singh, 160 AD2d 592, 554 NYS2d 236 (1st Dept 1990). Accordingly, the motion regarding the issue of dismissal of the instant proceeding is denied. Further, the motion regarding preclusion of certain evidence based on the defendant's contention that plaintiffs' abject failure to sufficiently comply with her Notice to Admit is deemed an admission is also denied based on the foregoing.
SUMMARY JUDGMENT MOTION AND EXTENSION OF THE ORDER OF THIS COURT
The October 27, 2009 Order of this Court by the Hon. Daniel Martin directs that motions for Summary Judgment must be filed within sixty (60) days of the filing of the Note of Issue. As plaintiffs filed same on November 23, 2009, defendant's April 30, 2010 filing of her Summary Judgment motion, which is included in the instant motion, is untimely. See Khandaker v. McKoy, 16 Misc 3d 1122(a), 847 NYS2d 902 (Kings County Sup. Ct. 2007). Defendant, sensing this, moves for an extension of time of that Order pursuant to CPLR § 2004 within the same motion. This request is also untimely. In order to avoid a default, defendant should have made her motion to extend the time before the sixty (60) days expired or, if she is making such motion after the fact, she must submit an affidavit of merit showing a need for the extension or a good excuse for her delay. See Conway v. Brooklyn Union Gas Co., 212 AD2d 497, 623 NYS2d 2 (2d Dept. 1995). Defendant has not submitted any such affidavit and her Good Faith Affirmation, assuming that she intends that this document meet this criteria, is woefully insufficient. Defendant's motion regarding this issue is denied.
CPLR § 308(5) DESIGNATING THE PLAINTIFFS' ATTORNEY AS AGENT TO ACCEPT SERVICE OF SUBPOENAS
CPLR § 2303-a provides "Where the attendance at trial of a party or person within the party's control can be compelled by a trial subpoena, that subpoena may be served by delivery in accordance with subdivision (b) of rule 2103 to the party's attorney of record." Further, CPLR § 2103(b) provides that such service can be made:
". . . [u]pon an attorney. Except where otherwise prescribed by law or order of court, papers to be served upon a party in a pending action shall be served upon the party's attorney . . . Such service upon an attorney shall be made . . . by delivering the paper to the attorney personally; or . . . by mailing the paper to the attorney at the address designated by that attorney for that purpose or, if none is designated, at the attorney's last known address . . . or by transmitting the paper to the attorney by facsimile transmission, provided that a facsimile telephone number is designated by the attorney for that purpose . . . by transmitting the paper to the attorney by electronic means where and in the manner authorized by the chief administrator of the courts by rule upon the party's written consent. . . ."
Therefore, it is proper that plaintiffs' attorney accept service of a trial subpoena which can be effected by facsimile, mail and electronic means. Defendant is to follow the parameters and procedures for such service as set forth in full in the relevant CPLR provisions.
STANDING
This Court directs, sua sponte, a stay of this proceeding specifically regarding the property interest of Penelope Eckstein's heirs-plaintiffs, Victoria Welton, Donna Wilson, Rhonda Gelke and Jacqueline Coughlin. Because Louise Collwell's children are vested as tenants in common, Penelope Eckstein's estate acquired the undivided interest upon her intestate death. Therefore, her surviving children are, at this time, the apparent beneficiaries of her interest in the subject premises. However, such a declaration has to be made by the Surrogate's Court. See Garland v. Raunheim, 29 AD2d 383, 288 NYS2d 417 (1st Dept. 1968); Mauer v. Mauer, 2005 WL 6306770 (New York County Sup. Ct. 2005); Mikkelson v. Kessler, 2007 WL 6849325 (Greene County Sup. Ct. 2007); Lichtenstein, Ben v. Canna Real Estate, 2009 WL 1029757 (New York County Sup. Ct. 2009). Absent any evidence indicating that the Surrogate's Court has disposed of the matter, the foregoing parties have no standing at this time.
Accordingly, defendant's motion is granted to the limited extent that plaintiffs' attorney is the designated agent authorized to accept service of a trial subpoena pursuant to CPLR § 2103 and in the manner as set forth in CPLR § 2103(b). The remainder of defendant's motion is denied. The parties are directed to petition the appropriate Surrogate's Court for disposition regarding Penelope Eckstein's interest in the subject real property or present evidence that the same has been disposed of by the Surrogate's Court on the next scheduled court date. Pending resolution of the foregoing issue, the instant matter is stayed regarding the interests of Donna Wilson, Rhonda Gelke, Jacqueline Coughlin, and Victoria Welton. Plaintiffs are required to post security and submit same to this Court on the next scheduled Court date.
This constitutes the decision and order of this Court.