Opinion
151866/2017
07-31-2020
Mildred GONZALEZ, Plaintiff, v. 431 EAST 115 STREET LLC, Galaxy General Contracting Corp., Volmer Construction Inc., Defendant.
Plaintiff: Law Office of Ami Morgenstern, 40-17 Broadway, 2nd Floor, P.O. Box 3223, Long Island City, NY 11103, By: Ami Morgenstern Esq. and Adam Scott Ashe Esq. Defendants: 431 East 115 Street, LLC and Galaxy General Contracting Corp., Morris, Duffy, Alonso & Faley, 2 Rector Street, 22nd Fl, New York, NY 10006, By: Charles Matthew Kerr Esq., Kevin G Faley Esq., and Manuel R. Reynoso Esq. Defendant: Volmer Construction Inc., Conway, Farrell, Curtin & Kelly P.C., 48 Wall Street, New York, NY 10005, By: Darrell John Esq., and Cindy Varrecchia Esq.
Plaintiff: Law Office of Ami Morgenstern, 40-17 Broadway, 2nd Floor, P.O. Box 3223, Long Island City, NY 11103, By: Ami Morgenstern Esq. and Adam Scott Ashe Esq.
Defendants: 431 East 115 Street, LLC and Galaxy General Contracting Corp., Morris, Duffy, Alonso & Faley, 2 Rector Street, 22nd Fl, New York, NY 10006, By: Charles Matthew Kerr Esq., Kevin G Faley Esq., and Manuel R. Reynoso Esq.
Defendant: Volmer Construction Inc., Conway, Farrell, Curtin & Kelly P.C., 48 Wall Street, New York, NY 10005, By: Darrell John Esq., and Cindy Varrecchia Esq.
Robert R. Reed, J.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69 were read on this motion to/for PRECLUDE.
In this personal injury action, defendant Volmar Construction Inc., incorrectly sued herein as Volmer Construction Inc. (Volmar), moves for an order: (a) pursuant to CPLR §§ 3042, 3124 and 3126 precluding plaintiff, Mildred Gonzalez, from offering into evidence upon the trial of this action any evidence of injuries and lost earnings referred to in the Demand for a Verified Bill of Particulars previously served on the plaintiff's attorneys, for failure to provide a Supplemental Bill of Particulars on the issues of lost wages and special damages; and for failure to provide color photographs, authorizations for employment records, union records, collateral sources, medical records of plaintiff's primary care physician, all in accordance with the court order dated August 29, 2019; and (b) upon the entrance of an order of preclusion, Volmar seeks an order dismissing plaintiff's complaint against Volmar.
In a cross motion, defendants 431 East 15 Street and Galaxy General join in defendant Volmar's motion, and incorporate and adopt all of the arguments as set forth by Volmar, and requests that, to the extent the court grants any relief to Volmar, the same relief also be granted as to defendants 431 East 115 Street and Galaxy General.
Background
Pursuant to a preliminary conference order dated August 16, 2018, plaintiff was to provide: 1) a supplemental bill of particulars as to items No. 8 for constructive notice, No. 23 for lost earnings, and No. 29 for special damages; 2) authorizations for treating physicians and facilities for injuries alleged and all prior injuries; 3) authorizations for employment records for the prior 2013 to the present; 4) photos; and 5) response to previously served discovery demands within 45 days (Volmar exhibit D).
On January 10, 2019, plaintiff was again directed to provide a supplemental bill of particulars as to the items specified above, as well as authorizations for her medical treatment for her injuries, including all prior injuries, and specifically related to treatment to her left knee for a period of three years prior to the date of loss (defendant exhibit E). All parties were directed to respond to previously served discovery demands within 30 days (id. ).
By letter dated March 27, 2019, Volmar through counsel advised plaintiff's counsel that Volmar had not received those documents required by the January 10, 2019 court order and requested that plaintiff immediately provide the outstanding discovery (defendant exhibit I).
On April 11, 2019, a status conference was conducted, and another order was entered with respect to outstanding discovery. The court ordered, among other issues, that plaintiff: 1) supplement the bill of particulars as to lost wages and special damages within 30 days; 2) provide color photos as per plaintiff's August 2, 2017 responses within 30 days; and 3) provide authorizations for records for employment (2013 — present), union (if applicable), collateral sources including Madagascar and BCBS, primary care doctor (3 years pre-accident to present), prior injuries and left knee treatment (three years pre-accident to present) within 30 days (Volmar exhibit F). In addition, all parties were ordered to respond to outstanding discovery and prior orders within 30 days to the extent the discovery was not provided. (id. ).
On June 27, 2019, the parties appeared for another status conference wherein the court ordered plaintiff to produce those records set forth in the April 11, 2019 order (Volmar exhibit G). The order is virtually identical to the August 11, 2019 order. Again, all parties were ordered to respond to prior orders and outstanding discovery demands within 30 days to the extent not yet provided (id. ).
By letters dated August 15, 2019 and August 23, 2019, defendant through counsel advised plaintiff's counsel that plaintiff's responses to the June 27th status conference order were past due and requested plaintiff to provide her responses immediately (Volmar exhibit I).
On August 29, 2019, the parties again appeared for a status conference wherein the court was advised that plaintiff failed to comply with the outstanding discovery outlined in both the April 11, 2019 and June 27, 2019 status conference orders (Volmar exhibit H). The court again ordered plaintiff to provide the aforementioned documents and discovery by September 30, 2019, as well as ordered that all parties were to respond to any outstanding discovery demands to the extent they had not yet been provided by that same date (id. ). In addition, the court ordered that if the outstanding responses were not provided by September 30, 2019, defendant had permission to file a motion (id. ).
On October 23, 2019, Volmar filed the instant motion. On November 5, 2019, defendants 431 East 115 Street and Galaxy General filed their cross motion. On November 26, 2019, the parties agreed to adjourn the motion, with plaintiff agreeing to serve an affirmation in opposition on or before December 16, 2019, with a reply being served on or before December 23, 2019 (stipulation to adjourn motion, NYSCEF Doc. No. 69). No opposition has been filed.
On December 5, 2019, defendants appeared for a status conference wherein the court was advised that plaintiff failed to comply with the outstanding discovery outlined in the April 11, 2019, June 27, 2019 and August 29, 2019 status conference orders (NYSCEF Doc. No. 70). Plaintiff failed to appear and her counsel appeared on her behalf after telephone calls were made (id. ). Plaintiff was again ordered to: 1) supplement the bill of particulars as to lost wages and special damages within 30 days; 2) provide color photos as per plaintiff's August 2, 2017 responses within 30 days; and 3) provide authorizations for records for employment (2013–present), union (if applicable), collateral sources including Madagascar and BCBS, primary care doctor (3 years pre-accident to present), prior injuries and left knee treatment (three years pre-accident to present) within 30 days (id. ). In addition, all parties were ordered to respond to outstanding discovery and prior orders within 30 days to the extent the discovery was not provided (id. ).
On January 8, 2020, plaintiff filed two supplemental bills of particulars providing answers to item No. 18 (regarding special damages, loss of earnings) for defendant Volmar (NYSCEF Doc. No. 71), and item Nos. 22 and 23 (regarding plaintiff's prior and current employment and loss of earnings) for defendant Galaxy General (NYSCEF No. 72). Plaintiff indicated that she was a teacher's assistant at a Headstart School, earning $31,000 and deferred the details regarding the position for deposition (id. ). In addition, plaintiff states that she worked from 2013 to present for the East Harlem Council for Human Services Inc. - Bilingual Headstart (id. ). Her loss of earnings is approximately $7,000 (id. ; NYSCEF Doc. No. 71). It is not clear if the other discovery demanded of plaintiff has been supplemented.
Discussion
CPLR 3042(a) states, in pertinent part, that "[w]ithin thirty days of service of a demand for a bill of particulars, the party on whom the demand is made shall serve a bill of particulars complying with each item of the demand, except any item to which the party objects, in which event the reasons for the objection shall be stated with reasonable particularity. The assertion of an objection to one or more of the items in the demand shall not relieve the party on whom the demand is made from the obligation to respond in full within thirty days of service of the demand to the items of the demand to which no objection has been made." Under CPLR 3042 (c), where a party fails to respond to a demand for a bill of particulars, the party seeking the bill of particulars may move to compel compliance. Further, if the failure to provide particulars is deemed to be willful, "the court may make such final or conditional order with regard to the failure or refusal as is just, including such relief as is set forth in [ CPLR 3126 ]" ( CPLR 3042(d) ).
CPLR 3124 provides that "[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article ..., the party seeking disclosure may move to compel compliance or a response." On a motion brought pursuant to CPLR 3124, the burden is on the party seeking the disclosure to establish a basis for the production sought ( Rodriguez v. Goodman, M.D. , 2015 NY Slip Op 31412(U), *5 [Sup Ct, NY County 2015] ). Plaintiff, as the opposing party, has the burden of establishing that the "disclosure sought is improper" ( Roman Catholic Church of Good Shepherd v. Tempco Sys. , 202 AD2d 257, 258 [1st Dept 1994] ).
CPLR 3126 authorizes the court to sanction a party who "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed." In addition, a failure to comply with discovery, particularly after a court order has been issued, may constitute the "dilatory and obstructive, and thus contumacious, conduct warranting the striking of the [answer]" (Kutner v. Feiden, Dweck & Sladkus , 223 AD2d 488, 489 [1st Dept 1996] ). "The striking of a party's pleadings should not, however, be imposed except in instances where the party seeking disclosure demonstrates conclusively that the failure to disclose was willful, contumacious or due to bad faith" ( Hassan v. Manhattan & Bronx Surface Tr. Operating Auth. , 286 AD2d 303, 304 [1st Dept 2001] ). For example, the sanction of striking a party's answer is warranted when a party repeatedly and persistently fails to comply with several disclosure orders issued by the court ( Min Yoon v. Costello , 29 AD3d 407 [1st Dept 2006] ).
Here, plaintiff's willful and contumacious conduct may be inferred from the extensive nature of her failure to comply with defendants' discovery demands and the numerous court orders regarding the same, coupled with her failure to respond to the instant motion by offering any excuse for her noncompliance ( see Rodriguez v. United Bronx Parents, Inc. , 70 AD3d 492, 492 [1st Dept 2010] [failure to comply with five successive disclosure orders held willful and contumacious] ). Nevertheless, even though the court finds plaintiff's conduct is willful and contumacious, "the extreme penalty of dismissal should not be imposed in the absence of any prior notice to plaintiff that such a sanction might be imminent" ( Armstrong v. B.R. Fries & Assoc., Inc. , 95 AD3d 697, 698 [1st Dept 2012] ; Michaluk v. New York City Health & Hosps. Corp. , 169 AD3d 496, 496–497 [1st Dept 2019] ). Defendants' papers fail to indicate that plaintiff had been warned, prior to the filing of this motion, that she would be precluded from introducing testimony or evidence, or have her answer stricken, if she did not provide certain discovery. A review of the December 5, 2019 status conference order shows that the language stating "Plaintiff shall be precluded per CPLR if response are not provided by December 23, 2019 to 1–5 above" is crossed out (NYSCEF Doc No. 70).
So, there is no confusion, the court now directs plaintiff to provide responses to the outstanding discovery within 30 days from the filing of this order on NYSCEF. To the extent that all responses and documents have been provided, plaintiff shall so state. Should plaintiff fail to remedy these deficiencies, defendant may file an affirmation, upon due notice, detailing plaintiff's failure and requesting renewal of this motion, at which time the court may impose sanctions against plaintiff including, but not limited to, preclusion, dismissal, and costs ( Manrique v. New York-Presbyterian Hosp. , 40 AD3d 270 [1st Dept 2007] ).
Conclusion
Accordingly, it is
ORDERED that the motion by defendant Volmar Construction Inc., incorrectly sued herein as Volmer Construction Inc. (Volmar) and the cross motion by defendants 431 East 115 Street LLC (431 East 115 Street) and Galaxy General Contracting Corp. (Galaxy General) seeking to preclude plaintiff from introducing evidence at trial thereby dismissing the complaint is denied with leave to renew should plaintiff fail to comply with this order within 30 days from the filing of the order on NYSCEF; and it is further
ORDERED that the branch of the motion and cross motion seeking to compel plaintiff to provide a verified bill of particulars and response to the movants' combined discovery demands is granted, and plaintiff shall comply with this order within 30 days from the filing of the order on NYSCEF. To the extent that all response and documents have been provided, plaintiff shall so state within said timeframe; and it is further
ORDERED that the case is scheduled for a status conference to be held on September 15, 2020 at 11:00 a.m. via telephone; and it is further
ORDERED that this constitutes the decision and order of the court.