Opinion
No. 100228/09.
2012-08-14
Joseph KANE and Jill Kane, Plaintiffs, v. The CITY OF NEW YORK and Police Officers John Doe Numbers 1 through 5, Defendants.
THOMAS P. ALIOTTA, J.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff Joseph Kane (“plaintiff”) alleges that he sustained personal injuries on April 13, 2011 when he was subjected to an assault by certain New York City police officers, who also falsely arrested and imprisoned him. A preliminary conference took place on March 15, 2011. Among the terms of the Preliminary Conference Order issued at that conference was a direction that the parties serve their demands for discovery and inspection by April 15, 2011. In addition, the City (“defendant”) was directed to supply (1) a Bill of Particulars on its affirmative defenses; (2) the names and addresses of all witnesses as well as their statements and any photographs; and (3) all memo book entries of the police officers involved, patrol guide records and all investigative reports and photographs.
An examination before trial of the plaintiff was subsequently conducted on June 17, 2011. During that deposition, his attorney would not let plaintiff answer certain questions with reference to his history of arrests. On September 13, 2011, a stipulation regarding discovery was entered into at a court conference (“the Stipulation”). This document provided, in relevant part, that the examination before trial of defendants would be held on November 4, 2011; that plaintiff was to provide information about his entire arrest history (including authorizations for the unsealing of records) and NYSID number within 45 days; that he would further provide HIPAA compliant authorizations for any mental health treatment he may have received; and that defendants' right to conduct a further examination before trial of plaintiff was reserved.
Plaintiff now moves to (1) vacate the Stipulation entered into on September 13, 2011, and (2) compel defendants to comply fully with the terms of the Preliminary Conference Order. In response, defendants have cross-moved to (1) direct plaintiff to appear for a further deposition and (2) compel plaintiff to comply with the terms of the Stipulation dated September 13, 2011.
CONTENTION OF THE PARTIES
Plaintiff contends that the Stipulation should be vacated because the attorney who entered into it, ostensibly on his behalf, had no authority to do so and, further, agreed to provide certain items of discovery in violation of plaintiff's rights. Specifically, plaintiff contends that his attorney of record was in a different court on the day that the Stipulation was executed, that the attorney of record had made arrangements with a specific per diem attorney to appear at the conference on his behalf; that this per diem attorney was apparently covering cases in more than one Part of the Richmond County Supreme Court on that date; and that she requested a different attorney to appear on her behalf for the conference in this matter. Plaintiff's attorney of record claims that while he had authorized the first per diem attorney to appear for his client, he had no knowledge of the attorney who actually appeared, and had not given him the authority to do so.
In addition, plaintiff objects to certain items which, by the terms of the Stipulation, he is required to produce, i.e., his record of arrests (even those that did not result in convictions), his NYSID number, and his mental health records.
As to the Preliminary Conference Order, plaintiff claims that he has made numerous written requests to the City to obtain the discovery directed in the order, some which has been supplied to him piecemeal, while other items have not been fully provided. As of the date of this motion, plaintiff claims that he has not received (1) the names and addresses of all witnesses, their statements and any photographs; (2) copies of the memo book entries made by the police officer defendants, and (3) the City's discovery and inspection demands and a bill of particulars. He further notes that the examinations before trial of the City's witnesses were not held as provided either in the Preliminary Conference Order or Stipulation, and have yet to take place.
For their part, defendants contend that plaintiff is compelled to comply with the terms of the Stipulation, since it was entered into in open court by an attorney appearing on the plaintiff's behalf, and that none of its terms are violative of plaintiff's rights. As to the Preliminary Conference Order, defendants contend that the additional materials annexed to its cross motion and reply affirmation bring it into compliance with the documentary demands in that order. As for the failure to produce its witnesses for deposition, the City argues that a subsequent date of November 4, 2011 was agreed to in the Stipulation, but that the depositions did not go forward at that time because plaintiff had announced an intention to file a motion to vacate same. However, that motion, which is presently before the Court, was not made until March 23, 2012.
DISCUSSION
The Stipulation
CPLR Section 2104, entitled “Stipulations”, states:
An agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered. With respect to stipulations of settlement and notwithstanding the form of the stipulation of settlement, the terms of such stipulation shall be filed by the defendant with the county
clerk.
Absent an affront to public policy, stipulations have long been considered a favored means for resolving disputes between parties (see Matter of Stravinsky, 4 AD3d 75, 80 [ 1st Dept 2003]; 1029 Sixth v. Riniv Corp., 9 AD3d 142, 146 [1st Dept 2004] ). Hence, the parties may stipulate away procedural defects in litigation; chart their own procedural course through the courts; and even waive certain jurisdictional defects (Nishman v. De Marco, 76 A.D.2d 360, 368 [ 2d Dept 1980] ). While a trial court retains the discretionary power to relieve parties from the consequences of a stipulation entered into during the course of litigation, such relief has traditionally been granted sparingly and only for good cause shown (see Teitelbaum Holdings v. Gold, 48 N.Y.2d 51, 54 [1979];Matter of Frutiger, 29 N.Y.2d 143 [1971];Lynch v. Lynch, 105 A.D.2d 1069, 1070 [4th Dept 1984] ).
Of particular relevance here is the expressed preference for written stipulations, as was recently noted by the Court of Appeals:
The plain language of the statute directs that the agreement itself must be in writing, signed by the party (or attorney) to be bound (CPLR 2104). As we remarked over a century ago, “[t]his rule is of somewhat ancient origin. It grew out of the frequent conflict between attorneys as to agreements made with reference to proceedings in actions, and was intended to relieve the courts from the constant determination of controverted questions of fact with reference to such proceedings” (Bonnette v. Long Island College Hosp. (3 NY3d 281, 286 [2004], quoting Mutual Life Ins Co of N.Y. v. O'Donnell, 146 N.Y. 275, 279 [1895] ).
It is well settled that in order to obtain relief from the terms of a written stipulation, a party must demonstrate either fraud, collusion, mistake, or accident (Matter of Abeido v. Abeido, 54 AD3d 330 [2d Dept 2008]; see also Matter of Evelyn P., 135 A.D.2d 716,717 [2d Dept 1987] ). Here, plaintiff's attorney of record has failed to provide this Court with any proof of this nature, but argues instead, that the agreement to produce evidence of plaintiff's entire arrest record is violative of, e.g., his rights under CPL 160.50. However, these rights are not absolute, and may be waived by the party entitled to their protection (see Green v. Montgomery, 95 N.Y.2d 693, 700–701 [2001].
Plaintiff's attorney of record also contends that the attorney who entered into the Stipulation on plaintiff's behalf had no authority to do so because he was not directly retained by plaintiff, but rather received the assignment from the per diem attorney who was retained by the attorney of record to appear at the conference. However, the rules for the 13th Judicial District specifically require that any attorney who appears for a conference must have full authority. (h ttp://www.nycourts.gov/courts/13jd/rules/13jd-rules.pdf) As a result, both the court and any opposing counsel are entitled to rely on the ability of every attorney who appears for a conference to enter into binding stipulations. Based on these presumptions, it has been held that even the settlement of an action can be enforced if entered into by an attorney with the apparent, although not actual authority to do so (see Collazo v. New York City Health & Hosp Corp., 103 A.D.2d 789, 789–790 [2d Dept 1984][“Where a court rule provides that an attorney shall not appear at a pretrial conference without full authority to settle his client's cause, any settlement effected at such stage will not be set aside on the basis of a subsequent claim that the attorney for one of the parties lacked actual authority”] ).
It must be noted here that the stipulation at bar deals only with items of discovery, and does not determine which of the disputed items, if any, might be admitted into evidence at trial. In view of the rigorous demands of present-day practice, this Court clearly cannot afford to take the time to inquire of every attorney appearing before it whether or not he or she possesses the requisite authority to enter into negotiations or binding agreements regarding any of the issues in controversy, and must rely on counsel's compliance with the published rules of the Court.
Consequently, the motion to vacate the stipulation is denied, and the cross motion to enforce its terms is granted. In addition, since part of that stipulation granted defendants the right to a further deposition of plaintiff, that portion of defendants' cross motion directing plaintiff to appear for a further deposition is granted. Plaintiff is ordered to supply all of the items of discovery enumerated in the Stipulation, and to appear for a further deposition within 30 days of the date of service upon him of a copy of this Decision and Order, with notice of entry, or such other date as may be mutually agreed upon by the respective attorneys in advance of that date.
The Preliminary Conference Order
The Preliminary Conference Order issued on March 15, 2011 directed that the examinations before trial of all of the parties were to be held on June 17, 2011. As noted above, the plaintiff appeared for a deposition on that date, but it appears that no witnesses were produced on behalf of defendants. Subsequently, it was stipulated (on September 13, 2011) that the deposition of defendants' witnesses would go forward on November 4, 2011, and again no witnesses were produced.
The rules of this Court require that “[i]f for any reason the examinations before trial fail to go forward, the Part Clerk is to be notified if the deposition is not rescheduled within two weeks of the original scheduled date” (http://www.nycourts.gov/courts/13jd/rules/Aliotta.pdf). Here, there is no indication that defendants ever complied with this rule. Plaintiff, on the other hand, has provided evidence that he sought to achieve compliance with the Preliminary Conference Order on numerous occasions prior to the making of this motion, while defendants have failed to deny their lack of compliance with the Preliminary Conference Order, and have, only now attempted to remedy this omission.
Clearly, defendants' compliance with the terms of the Preliminary Conference Order has been untimely, and to date, incomplete. Pursuant to the terms of that order, the “[f]ailure to comply with any of these directives may result in the imposition of costs and/or sanctions or other action authorized by law, including preclusion or [the] striking of pleadings.” Nevertheless, plaintiff's notice of motion does not seek the imposition of costs, sanctions, preclusion, or the striking of defendants' answer; it seeks only this Court to compel defendants to comply with the terms of the Preliminary Conference Order. That branch of plaintiff's motion is therefore, granted, and defendants are ordered to fully comply with the terms of the above order, including the production of its witnesses for deposition within 30 days of the date of service upon them of a copy of this Decision and Order with notice of entry, or such other date as may be mutually agreed upon by the respective attorneys in advance of that date.
The parties are directed to appear for a Compliance Conference in this Part on October 2, 2012 at 9:30 a.m. Previously scheduled appearance for September 18, 2012 is administratively adjourned.
This constitutes the Decision and Order of the Court.