Opinion
215802.
September 9, 2008.
Sgambettera Associates, P.C., Attorneys for Plaintiffs, New York.
Glenn Coffman, Self Represented Defendant, Latham, NY.
DECISION/ORDER
Plaintiffs commenced the instant action seeking recovery of money damages with respect to a parcel of residential real property which they own as follows: from the City of Troy for damages to their real property allegedly sustained as a result of numerous water main breaks and the operation of heavy equipment to demolish a house in the vicinity of plaintiffs' premises; from The Connors Agency for failing to obtain adequate insurance coverage; from National Grange Mutual Insurance Co. for failing to pay on their casualty insurance claim; and from defendant Coffman (hereinafter "defendant"), the vendor of the property, for misrepresentations in the sale of the premises.
The complaint, as it relates to The Connors Agency, was dismissed by order dated May 11, 2007.
By notice of motion dated March 17, 2008 the plaintiffs made a motion pursuant to CPLR 3126 to strike the answer of defendant or, in the alternative for preclusion, on grounds that the defendant had failed to comply with a demand for production of documents which was served on said defendant on January 6, 2006 . The plaintiffs indicate that said the defendant never responded to the demand for production of documents, and that plaintiffs re-served the demand on January 24, 2007. Thereafter, on February 11, 2008 the Court conducted a scheduling conference for the completion of pre-trial discovery. Defendant Coffman failed to appear at the conference . At the conference the parties agreed upon a schedule for the completion of pre-trial discovery which required, as relevant here, that all "paper" discovery be completed by March 15, 2008. The schedule was "so-ordered" by the Court on February 13, 2008. The plaintiffs indicate that as of the date of the motion, defendant had failed to comply with their discovery demand.
On a procedural note, the defendant did not timely respond to the instant motion, and requested an adjournment so that he could submit answering papers. Because it appeared that the motion papers had been mis-addressed the Court, by order dated April 25, 2008, granted the defendant an extension until May 15, 2008 to submit answering papers. The Court also directed that the plaintiffs would have until May 22, 2008 to submit any reply papers.
He maintains he did not receive notice of the scheduling conference until well after it was held.
The defendant's reply includes a copy of a response to the discovery demands which he first served on April 8, 2008. The plaintiffs maintain that defendant's response to the demand for production of documents is untimely and deficient, and that he has provided no explanation for the lengthy delay.
"A court may strike the 'pleadings or parts thereof as a sanction against a party who 'refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed' (CPLR 3126). The nature and degree of any penalty imposed on a motion pursuant to CPLR 3126 is a discretionary matter . . . and 'striking an answer is inappropriate absent a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith'" (Nabozny v Cappelletti, 267 AD2d 623, 625 [3d Dept., 1999] quoting Harris v City of New York, 211 AD2d 663, 664 and, Forman v Jamesway Corp., 175 AD2d 514 [3d Dept., 1991] [other citations omitted]).
In this instance, the defendant's failure to comply with the demand for production of documents is flagrant. Defendant's belated response, only after the instant motion was made, strongly suggests that the defendant had no intention of complying with the demand. Documents were produced only after the instant motion was made. No reason or excuse is provided by the defendant with respect to why the documents were not produced in a timely manner. In fact defendant does not even attempt to address the issue. It is well settled that a self represented litigant acquires no greater rights than any other litigant (see Johnson v Title North, Inc., 31 AD3d 1071 [3rd Dept., 2006]; Matter of Hanehan v Hanehan, 8 AD3d 712, 714 [3d Dept., 2004]; Sloninski v Weston, 232 AD2d 913, 914 [3rd Dept., 1996]; Cippitelli v County of Schenectady, 284 AD2d 823, 825-826 [3rd Dept., 2001]; Ferran v Dwyer, 252 AD2d 758, 759 [3rd Dept., 1998]). Defendant's conduct, in the Court's view, has unnecessarily delayed the prosecution of the instant action. The Court finds that the conduct of the defendant was willful and designed to frustrate plaintiffs' discovery requests .
The Court observes that there are remedies available to a party who believes that a discovery demand is improper or burdensome (see CPLR 3103 [a]). In such circumstances a party may apply to the court for relief "to prevent unreasonable annoyance, expense,. embarrassment, disadvantage, or other prejudice to any person . . ." (id.). What is not proper is to simply ignore the demand and do nothing, as was the case here.
The Court will now review each of the demands and responses to ascertain their sufficiency.
Plaintiff's first demand requested defendant to provide the structural inspection associated with plaintiffs' purchase of the premises. The defendant responded as follows: "There was no structural inspection done to my knowledge. Mr. Nichols has been an expert in the field for more than 25 years and has always bragged that he [k]new what needed to be done". The Court finds the first sentence of this response to be adequate for purposes of establishing that he has no structural inspection in his possession. No further response is required. The Court directs that the second sentence of the response be stricken as unresponsive.
Plaintiff's second demand requested that the defendant provide all documents associated with the sale of the premises to plaintiffs. The defend responded as follows: "The Nichol's have all documentation that was presented or signed already for the purchase contract and from the closing." The demand sought the documents in the defendant's possession. It makes no difference whether or not the plaintiffs may have some or all of the same documents in their possession. The foregoing is clearly not responsive to the demand. The Court will therefore direct that the defendant submit a supplemental response which indicates whether or not he has any documents associated with the sale of the premises in his possession, and producing copies of those documents which are in his possession.
Plaintiff's third demand requested that the defendant provide all documents and correspondence associated with the marketing of the premises. The defendant's response recites as follows: "There were no marketing materials for the premises. The Nichols always looked at any property prior to me closing and let me know what needed to be done. They approached me while they were fixing up the property and asked to purchase the property." The Court finds the first sentence to be an adequate response to the demand. No further response is required. The Court directs that the second and third sentences of the response be stricken as unresponsive.
Plaintiff's fourth demand requested that the defendant provide all documents relating to the improvements made to the premises prior to the transfer to the plaintiffs. The defendant responded as follows: "The Nichols son was in charge of all renovations and had purchased the materials. Not all of the receipts were turned into me. Attached are copies of receipts from other contractors as well." The Court finds this answer to be largely non responsive. If the defendant has in his possession other documents related to the improvements made to the premises prior to transfer to the plaintiffs, he should so indicate and produce the documents. If he does not have such documents, he should so state.
The Court now turns to the penalty which should be imposed by reason of the defendant's willful failure to timely comply with the plaintiff's discovery demand. Although defendant was extremely tardy in responding to plaintiff's discovery demand, the Court is of the view that the record does not support the most extreme form of sanction (see Altu v Clark, 20 AD3d 749, 750-751). Under all of the circumstances, the Court finds that a conditional order of preclusion, together with the imposition of a monetary sanction of $250.00 is warranted and appropriate (see id.).
The Court concludes that the motion should be granted to the extent that the defendant should be precluded from offering at trial any evidence in support of his answer unless, within thirty (30) days of service of a copy of the instant order with notice of entry upon the defendant, he (1) serves a further response to the defendant's demand in keeping with this decision-order, and (2) pays the sum of $250.00 directly to counsel for the plaintiffs.
SO ORDERED!
This shall constitute the Decision and Order of the Court. All papers are returned to the attorneyss for plaintiff who is directed to enter this Decision/Order without notice and to serve all remaining counsel with a copy of this Decision/Order with notice of entry.
Papers Considered:
1. Notice of Motion dated March 17, 2008; Affirmation of Gregory J. Sanda, Esq. dated March 17, 2008, Supporting Papers and Exhibits
2. Motion To Adjourn of Glen Collman dated April 7, 2008, Supporting Papers and Exhibits
3. Reply Affidavit of Glen S. Coffman, sworn to May 8, 2008
4. Affirmation of Gregory J. Sanda, Esq., dated May 22, 2008.
cc.:
Pennock, Breedlove Noll, P.C.
1407 Route 9, 9 North, Building 4, 2nd Floor
Clifton Park, NY 12065
Attn.: Carrie McLoughlin Noll, Esq.
David Mitchell, Esq.
City of Troy Corporation Counsel
Troy City Hall
Monument Square
Troy, NY 12180
Attn.: Charles A. Sarris, Esq.