Opinion
No. 2003-356 Q C.
Decided January 27, 2004.
Appeal by plaintiff from an order of the Civil Court, Queens County (A. Gazzara, J.), entered August 20, 2002, which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion to vacate the order of preclusion entered against her.
Order unanimously affirmed without costs.
PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
In August of 1998, plaintiff allegedly injured herself while exiting an elevator on defendant's premises. The instant action was commenced in the Supreme Court, Queens County, in December of 1998. In September of 2000, a Preliminary Conference order set up a discovery schedule and, inter alia, directed plaintiff to furnish defendant with various authorizations for physician and hospital records, and ordered that a physical examination of plaintiff be held on or before 60 days after her deposition was held. At plaintiff's deposition, on March 23, 2001, defense counsel was made aware of several prior accidents in which plaintiff had been involved. Accordingly, in a notice for discovery and inspection sent shortly after the deposition, various additional items of discovery were requested. At a compliance conference held on May 1, 2001, plaintiff was ordered to respond to the discovery notice within 20 days and was directed to serve and file a note of issue and certificate of readiness on or before August 12, 2001. On May 2, 2001, the case was transferred to the Civil Court pursuant to CPLR 325 (d).
In August of 2001, defendant moved for an order of preclusion based upon plaintiff's failure to provide the eight items of discovery sought in the notice of discovery and inspection. The return date of the motion was some time around September 11, 2001, and was subsequently adjourned due to the events surrounding that date. On December 4, 2001, a conditional order of preclusion was granted on default, the court directing that the eight aforementioned items be furnished to defendant on or before February 1, 2002. Plaintiff's failure to comply with the order would result in her preclusion from introducing documentary evidence of damages at trial. Plaintiff's counsel was served with notice of entry of the order on January 8, 2002.
By a motion dated February 14, 2002, defendant moved for summary judgment dismissing the complaint or, in the alternative, for an order striking the complaint, pursuant to CPLR 3126, due to plaintiff's continued failure to comply with discovery orders. Some time after the motion was made, new counsel appeared on behalf of plaintiff and, as he had not yet received the file from former counsel, a motion schedule was set up, giving new counsel the opportunity to file a cross motion, with a final return date of June 26, 2002 for both the motion and cross motion. Plaintiff attributed the previous delays in complying with court-ordered discovery, as well as defendant's discovery demands, to a complete and total breakdown in communication between her and her former counsel as well upon the latter's incompetence. Ultimately, the court below granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion to vacate the conditional order of preclusion, finding that plaintiff not only failed to comply with the conditional order of preclusion, but also with two prior court orders directing her to provide discovery.
It is well settled that the nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 lies within the sound discretion of the trial court ( Herrera v. City of New York, 238 AD2d 475) and will be disturbed only if there has been an abuse or improvident exercise of discretion. In order to avoid the adverse impact of a conditional order of preclusion, a plaintiff who has not complied with the order must demonstrate an excusable default and the existence of a meritorious claim ( see Askenazi v. Hymil Mfg. Co., 263 AD2d 443). In the instant case, although it appears that plaintiff may have a meritorious claim, the essential issue is whether plaintiff has presented a reasonable excuse for the default. Plaintiff's current counsel has attempted to shift the responsibility for the delays upon plaintiff's former attorney due to incompetence of counsel. However, bare allegations of incompetence on the part of prior counsel have been held to be insufficient to serve as a basis for vacating a default ( see Achamrong v. Weicielt, 240 AD2d 247, 248; Spatz v. Bajramoski, 214 AD2d 436; see also Beale v. Yepes, 309 AD2d 886). Even assuming that prior counsel's failure to adhere to the discovery schedules was a result of law office failure, present counsel submitted conjectural and insufficiently detailed allegations of fact to explain the reason for the delays ( see Morris v. Metropolitan Transp. Auth., 191 AD2d 682). Insofar as present counsel attempts to excuse prior counsel's dilatory conduct based upon the events surrounding September 11, 2001, such excuses are unavailing inasmuch as much of the delay occurred prior to that date. Indeed, just as a court may, in its discretion, accept a claim of law office failure as satisfying the reasonable excuse requirement, so it may reject such an excuse, and grant either dismissal of a complaint or an order of preclusion, where the claim is vague, unspecified or unsubstantiated ( see e.g. General Elec. Capital Auto Lease v. Terzi, 232 AD2d 449) or where a party has demonstrated a pattern of default or neglect ( see e.g. Inc. Vil. of Hempstead v. Jablonsky, 283 AD2d 553).
The absence of any reasonably articulated excuse for a delay in responding to discovery demands, coupled with a delaying party's failure to object to those demands, supports an inference that the failure to comply was wilful ( see Frias v. Fortini, 240 AD2d 467; Brady v. County of Nassau, 234 AD2d 408). Where a party, by its attorney, persistently ignores discovery demands, wilfully defies court orders and repeatedly fails to appear in court, there is a pattern of neglect which, even if the prior attorney is responsible for some of the delay, is imputable to the party ( see MRI Enters. v. Amanat, 263 AD2d 530).
In the opinion of this court, plaintiff's former counsel repeatedly failed to comply with defendant's demands for discovery as well as with court orders directing disclosure, and plaintiff's current counsel did not offer a reasonable excuse for such noncompliance. Under the circumstances presented, particularly due to the length of the delay and the prejudice to defendant the court below did not abuse Its discretion In granting defendant's motion for summary judgment dismissing plaintiff's complaint and denying plaintiff's cross motion to vacate the order of preclusion entered against her.