Opinion
704956/2017
11-13-2018
QIN LIU, Plaintiff, v. FIRST BAPTIST CHURCH OF FLUSHING, et al., Defendant.
For the Plaintiff: Michael J. Kapin, Esq., 305 Broadway (suite 1004), New York, New York 10007 For Defendants: Wilson, Elser, Moskowitz, Edelman & Dicker LLP, by Jeremy Buchalski, Esq., 150 East 42nd Street, New York, New York 10017-5639
For the Plaintiff: Michael J. Kapin, Esq., 305 Broadway (suite 1004), New York, New York 10007
For Defendants: Wilson, Elser, Moskowitz, Edelman & Dicker LLP, by Jeremy Buchalski, Esq., 150 East 42nd Street, New York, New York 10017-5639
Salvatore J. Modica, J.
The plaintiff, on June 18, 2014, was allegedly injured in a construction site accident near the corner of Sanford Avenue and Union Street in downtown Flushing, Queens County, New York, where he was hit by falling debris.
Despite a clear so-ordered stipulation, dated October 1, 2018, and entered on October 5, 2018, requiring the plaintiff to testify no later than November 7, 2018, or be precluded from offering evidence, the plaintiff has not appeared for an Examination Before Trial. Paragraph 2 of the so-ordered stipulation states: "Defendant reserves the right to enforce orders dated November 27, 2017 and March 20, 2018 precluding plaintiff from offering evidence at time of trial. These orders are not altered or modified by this order."
The undersigned, in the same so-ordered stipulation, required counsel to appear for a conference on even date, November 13, 2018, to assess the progress of discovery.
At the counsel, defense counsel, by Jeremy Buchalski, Esq., vigorously and articulately urged the Court to enforce the Court's aforementioned stipulation. The repeated failure by a party to appear for a deposition is good and strong grounds for dismissal of a pleading. See, e.g., Coley v. Baez , 2011 WL 66043, 2011 NY Slip Op. 50016(U) (Sup. Ct. Queens County 2011) (Markey, J.). The Appellate Division, Second Department, furthermore, has made clear that court orders on discovery are to be followed. See, Luo v. Yang, 150 AD3d 726 (2nd Dept. 2017) (a conditional order of preclusion requires a party to provide certain discovery by a date certain, or face the sanctions specified in the order); 150 Centreville, LLC v. Lin Assocs. Architects, P.C. , 151 AD3d 912 (2nd Dept. 2017) (plaintiff failed to proffer reasonable excuse for failure to produce items requested by architect, and failed to establish potentially meritorious cause of action for recovering damages for professional malpractice and breach of contract, and thus was not entitled to vacatur of either dismissal of action against architect or money judgment for attorney fee award in favor of architect; plaintiff failed to secure documents when provided access by court order for specified time period, did not seek an extension of that period of time before it expired, and did not take appropriate steps to ensure that documents were not disposed).
In support of relief from the remedy required aforementioned so-ordered stipulation, plaintiff's counsel, Michael J. Kapin, Esq., with equal fervor for his client, advanced several arguments. Mr. Kapin first explained that he has learned from plaintiff's relatives that the plaintiff is now in China and will not be returning until the spring of 2019. Second, and more important, the plaintiff's counsel produced for opposing counsel, in court on even date, the medical records of the plaintiff. Plaintiff, consistent with his verified bill of particulars, may have been treated for neurological and mental—and perhaps psychological—impairments based on the construction materials and debris that allegedly hit and struck him. That important fact, together with the fact that the plaintiff speaks Chinese and his attorney is not fluent in Chinese, calls out for relief from the stipulation that the undersigned had so-ordered six weeks ago.
Plaintiff, in addition, has produced for opposing counsel, a videotape relating to the injury allegedly sustained and, as stated, the medical records of the plaintiff.
The Court, in the interests of justice and in the provident exercise of its discretion, thus declines to grant preclusion under the above-described circumstances. The Court thus orders that plaintiff is to appear for a deposition on or before May 1, 2019. Counsel shall cooperate in arranging for reliable interpretation of the plaintiff's deposition. Mr. Kapin shall immediately send a copy of this order to the plaintiff and to the plaintiff's relatives. If plaintiff fails to appear for the EBT on or before May 1, 2019, defense counsel shall send an email to the Court, with a copy to plaintiff's counsel, asking the Court, without the need for a formal motion, to strike the complaint or preclude evidence.
Depositions of defendants shall follow that of plaintiff's EBT, at dates and times to be arranged by counsel cooperating with each other.
The Court is extending the plaintiff's time to file a note of issue from December 14, 2018, to July 12, 2019. Defendants' time to file any motion for summary judgment is also extended based on the new timetables in this order.
The Court should be notified by an email to Howard L. Wieder, Principal Court Attorney to the undersigned, of any further difficulty with discovery or if the need for another conference arises.
The foregoing constitutes the decision, order, and opinion of the Court.