Opinion
No. 123 Index No. 000000/2019
03-01-2023
J.C., Plaintiff, v. A.J.S., Defendant.
Marks, DiPalermo, Wilson, PLLC, represented Plaintiff. Defendant was pro se.
Unpublished Opinion
Marks, DiPalermo, Wilson, PLLC, represented Plaintiff.
Defendant was pro se.
Conrad D. Singer, J.
The following papers have been read on this motion:
Plaintiff's Notice of Motion and Supporting Exhibits [Seq. 002] X
Plaintiff's Notice of Motion and Supporting Exhibits [Seq. 003] X
Upon the foregoing e-filed papers, the motion by the plaintiff, J.C., for an Order pursuant to CPLR §3126 striking the Defendant's, A.J.S. ["defendant"], Answer for his failure to produce a witness for deposition and his failure to comply with this Court's Orders; or, in the alternative, for an Order precluding the defendant from offering any proof at trial in the form of testimony or otherwise, regarding the issue of liability [Seq. No. 002]; and the plaintiff's motion for an Order vacating the Certification Order, entered on July 27, 2022, or in the alternative, extending the plaintiff's time to file the Note of Issue in this matter [Seq. No. 003], are determined as hereinafter follows:
The plaintiff commenced this action by the filing of a Notice with Summons on October 23, 2019. Issue was joined by the pro se defendant's service of an Answer dated January 15, 2020. The defendant is an attorney, and this action arises out of his alleged legal representation of the plaintiff and his alleged, inter alia, negligence, malpractice, breach of contract, and fraud, which are alleged to have been committed during such representation.
The plaintiff's motion to strike the defendant's Answer [Seq. 002] comports with 22 NYCRR 202.7(a), as it includes an Affirmation of Good Faith in which the plaintiff's counsel recounts their repeated efforts to resolve the issues raised by the motion, which efforts consist of the following: 1) the plaintiff sent multiple requests for discovery to the defendant on at least on three (3) occasions, specifically on 11/15/2021, 01/18/2022, and 02/18/2022, and in each instance, the defendant has failed to provide the requested discovery and/or information; and 2) the plaintiff attempted to conduct the defendant's deposition on at least four (4) times, specifically on 03/16/2022, 05/16/2022, 06/02/2022 and 08/17/2022, and in each instance, the defendant failed and/or refused to appear and/or testify; and 3) the defendant has failed to appear at court compliance and settlement conferences, on at least two dates, i.e., on 7/25/22, and on 09/13/22.
The Court further notes that the defendant has not opposed the plaintiff's motion to strike defendant's Answer or the plaintiff's motion to extend the time to file the Note of Issue.
The defendant previously moved to stay the instant proceedings due to an unspecified health condition. That motion was denied by the Judge who previously presided over this case, in a Short Form Order entered May 9, 2022 [NYSCEF Doc. No. 44].
Under CPLR §3126, if any party refuses to obey a disclosure order or willfully fails to disclose information which the Court finds ought to have been disclosed during discovery, the Court, in its discretion, may impose sanctions upon the disobeying party. (CPLR §3126). "Although actions should be resolved on the merits where possible, a court may strike [a pleading] for failure to comply with court-ordered discovery where there is a clear showing that the noncompliance is willful and contumacious" (Rawlings v. Gillert, 78 A.D.3d 806 [2d Dept 2010]; see also CPLR 3126[3]). The determination of whether to strike a pleading is addressed to the sound discretion of the trial court. (see Raville v. Elnomany, 76 A.D.3d 520 [2d Dept 2010]). The striking of an Answer may be appropriate where there is "clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith". (See Mendez v. City of New York, 7 A.D.3d 766, 767 [2d Dept 2004]).
In this case, the defendant has failed to respond to Court-ordered discovery consisting of responses to the plaintiff's written discovery demands and has failed to appear and/or refused to appear for a deposition in this matter, including as ordered by this Court in a so-ordered stipulation entered July 27, 2022, in which the defendant was directed to be virtually deposed on August 17, 2022. While the defendant has previously moved to stay this action based on his alleged health condition, that motion was denied by the Court. Furthermore, while the defendant has previously asserted in letters sent to the Court that his unspecified health conditions prevent him from attending Court conferences, he has contended that he can appear Court conferences virtually via ZOOM, which belies any excuse he may provide for the failure to appear at a Court-ordered ZOOM deposition. In light of same, and considering that the defendant has failed to submit any opposition papers in response to the plaintiff's motion, the Court finds that the plaintiff has sufficiently established that the defendant has willfully failed to comply with Court-ordered discovery, warranting the imposition of sanctions under CPLR § 3126.
Therefore, the plaintiff's motion will be granted unless the defendant provide full and complete responses to the plaintiff's discovery demands within twenty-one (21) days of being served with a copy of this Decision and Order and Notice of its Entry, AND appear for a virtual deposition within forty-five (45) days of being served with a copy of this Decision and Order and Notice of its Entry. This Order will be self-executing.
The plaintiff also moves for an Order vacating the Certification Order in this matter, entered on July 27, 2022, which required the plaintiff to file a Note of Issue on or before October 25, 2022 [Seq. 003]. In light of the defendant's non-compliance with Court-ordered discovery discussed above, the plaintiff's motion is GRANTED to the extent that the plaintiff's time to file the Note of Issue in this matter is hereby extended to ninety (90) days from the date of this Order, or upon the completion of outstanding discovery in this matter, whichever occurs first. (Summers v Kardex Sys., Inc., 210 A.D.2d 216, 216-17, 619 N.Y.S.2d 963 [2d Dept 1994]). There shall be no further adjournments of the Note of Issue in this matter without pre-approval from the Court.
Accordingly, it is hereby, ORDERED, that the plaintiff's motion to strike the defendant's Answer is GRANTED, to the extent that the defendant is hereby required to provide the plaintiff with full and complete responses to the plaintiff's outstanding written discovery demands within twenty-one (21) days of being served with a copy of this Decision and Order and Notice of its Entry, AND is hereby required to appear for a virtual deposition within forty-five (45) days of being served with a copy of this Decision and Order and Notice of its Entry, and the defendant's failure to comply with same shall result in his Answer being stricken [Seq. 002]; this Order is self-executing; and it is further, ORDERED, that the plaintiff's motion for an Order extending his time to file a Note of Issue in this case is GRANTED, and the plaintiff's time to file the Note of Issue in this case is extended to ninety (90) days from the date of this Decision and Order, or upon the completion of the outstanding discovery in this case, whichever occurs earlier; and there shall be no further adjournments of the deadline to file the Note of Issue in this case without pre-approval from the Court; and it is further, ORDERED, that plaintiff's counsel shall serve the defendant with a copy of this Decision and Order together with Notice of its Entry; and it is further, ORDERED, that all other requests for relief not specifically addressed herein shall be deemed DENIED.