Opinion
2014-1858 S C 2014-2528 S C
11-30-2015
Candido E. Fuentes-Felix, Respondent, v. Arnold Joseph Ehrlich, Appellant.
PRESENT: :
Appeals from orders of the District Court of Suffolk County, Second District (Carl J. Copertino, J.), dated June 23, 2014 and September 22, 2014, respectively. The order dated June 23, 2014, insofar as appealed from and as limited by the brief, denied the branches of defendant's motion seeking to dismiss the complaint and to impose sanctions. The order dated September 22, 2014, insofar as appealed from, denied the branches of defendant's motion seeking discovery.
ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,
ORDERED that the order dated June 23, 2014, insofar as appealed from, is affirmed, without costs; and it is further,
ORDERED that the order dated September 22, 2014, insofar as appealed from, is affirmed, without costs.
Plaintiff commenced this action in October 2013 to recover a balance due for surgical services that had been rendered to defendant. Issue was joined in November 2013 by defendant's service of a pro se verified answer in which he generally denied the allegations of the complaint, and the action was placed on the court's general calendar (UDCA 1301). After several pretrial conferences between defendant and plaintiff's counsel resulted in an inability to resolve the matter, an April 28, 2014 trial date was set and was marked final against defendant. Before the trial date, defendant retained counsel who, on April 10, 2014, moved for, among other things, leave to serve an amended answer; to strike the action from the trial calendar; to dismiss the complaint; and to impose sanctions. By order dated June 23, 2014, the District Court granted the branch of defendant's motion seeking leave to serve an amended answer and denied the branches of the motion seeking to strike the action from the trial calendar, dismiss the complaint and impose sanctions. The court further directed the parties to appear for trial on September 15, 2014.
Thereafter, on August 5, 2014, defendant moved, insofar as is relevant to this appeal, for an order: (1) permitting the filing and service of a notice of deposition and document demand; (2) directing plaintiff to appear for a deposition prior to September 30, 2014; and (3) directing plaintiff to respond to and provide the documents requested in an annexed document demand prior to September 30, 2014. In a supporting affirmation, defense counsel stated that he had only recently been retained by defendant and that, prior to his retention, defendant had not sought any discovery. Counsel stated that he could not conduct an adequate defense of the action without appropriate discovery. By order dated September 22, 2014, the District Court denied those branches of defendant's motion.
With respect to the order dated June 23, 2014, we find no merit to defendant's contention that the complaint should have been dismissed due to plaintiff's failure to allege in his complaint that he was licensed to practice medicine in New York State (cf. CPLR 3015 [e]). CPLR 3015 (e) provides that if a plaintiff which is supposed to be licensed by a specified consumer affairs department brings an action against a "consumer" based on a claim arising out of the business for which the license is required, and fails to set forth in its complaint its licensing information, the defendant may move to dismiss the complaint pursuant to CPLR 3211 (a) (7). Contrary to defendant's contention, CPLR 3015 (e) does not apply to physicians, such as plaintiff herein, who neglect to mention in their complaints that they are licensed in New York State.
Likewise, there is no merit to defendant's argument that, because some of the language of the complaint was so vague and lacking in specificity, the complaint could not be defended against and should therefore be dismissed. We note that defendant did not demand a bill of particulars in order to seek clarification of the allegations of the complaint nor did he move for a more definite statement (see CPLR 3024 [a]).
Similarly, we find unpersuasive defendant's contention that the District Court gave no evidentiary weight to defendant's affidavit and found it inadmissible. While the District Court denied the branch of defendant's motion seeking to dismiss the complaint, dismissal was denied not because the affidavit was inadmissible, but rather because defendant's allegations of fraud on plaintiff's part were conclusory, based upon hearsay and unsubstantiated by any evidence in admissible form.
With respect to the branch of defendant's motion seeking the imposition of sanctions, we find that the District Court did not improvidently exercise its discretion in denying this branch of defendant's motion.
As to the order dated September 22, 2014, we disagree with defendant's contention that the District Court improvidently exercised its discretion in denying defendant leave to conduct discovery. From November 2013 until April 10, 2014, the District Court dealt with defendant as a self-represented litigant who at no time sought discovery prior to the time the action was placed on the trial calendar, and who only retained counsel in April 2014, after the court had set an April 28, 2014 trial date and marked the matter final against defendant. Defense counsel did not seek to conduct discovery until four months later, in August 2014. While Uniform Civil Rules for the District Courts (22 NYCRR) § 212.17 (d) provides that, after an action has been placed on the trial calendar, "if some unusual or unanticipated conditions subsequently develop which make it necessary that further pretrial examination or further preliminary proceedings be had, and if without them the moving party would be unduly prejudiced," the court may grant permission to conduct a pretrial examination or preliminary proceedings, the rule purports to apply only where all the parties have appeared by attorney, and the matter has been placed on the trial calendar after a notice of trial has been filed and served. Even assuming that the rule is applicable to this action, defense counsel's affirmation did not describe any "unusual or unanticipated conditions" which had arisen since the matter had been placed on the trial calendar, to warrant further discovery. Counsel's assertion that he had only "recently" been retained by defendant was insufficient, as the affirmation did not "state in detail . . . the facts claimed to entitle [defendant]" to such relief (Uniform Civ Rules for Dist Cts [22 NYCRR] § 212.17 [d]). "The lack of complete discovery due to the passage of time cannot be considered such a[n] unusual or unanticipated' circumstance" (Philpott v Bernales, 196 Misc 2d 117, 118 [App Term, 2d & 11th Jud Dists 2003]). Consequently, the District Court did not improvidently exercise its discretion in denying the branches of defendant's motion seeking discovery.
Accordingly, the orders dated June 23, 2014 and September 22, 2014, insofar as appealed from, are affirmed.
Marano, P.J., Garguilo and Connolly, JJ., concur.
Decision Date: November 30, 2015