Opinion
12795/06.
Decided August 6, 2007.
SCHIAVETTI, CORGAN, DiEDWARDS NICHOLSON, LLP, By: Keith Dewar, Esq., Attorneys for Plaintiffs, White Plains, New York.
KAYE SCHOLER, LLP, By: Glenn J. Pogust, Esq., Attorneys for Defendants, PPG, Cortese Jodsiz, New York, New York.
Plaintiffs Reilly Green Mountain Platform Tennis and RPTG, Ltd. move for relief relating to this Court's prior determination that the action is ready for trial. The Notice of Motion identifies the relief sought as an order requiring the production of documents. The affirmation submitted in support of the motion identifies the object of the motion as seeking "to compel and extend time to file Note of Issue". No matter how Plaintiffs describe their motion, the Court describes it as bordering on the frivolous and utterly lacking in merit.
The Court notes that this motion is dated July 12, 2007, nearly two weeks after the Court, on June 29, 2007, issued a Trial Readiness Order, set a trial date of November 13, 2007, and set a schedule for motions for summary judgment. Plaintiffs' counsel, Keith Dewar, Esq., did not object to the motion schedule or to the trial schedule. Several days later, however, counsel for Plaintiffs wrote the Court and requested that the trial be adjourned until January, 2008 on the ground that the "attorney assigned to this matter" had a trial scheduled elsewhere starting on November 1, 2007. This Court, by letter issued on July 5, 2007, denied the application for an adjournment of the trial date. The present application followed one week later. Under the circumstances, the Court cannot help but conclude that this motion is nothing more than an attempt to adjourn the trial through the alternative guise of belatedly seeking disclosure, a motion made despite Plaintiffs' history of laxity and inattention to this matter.
No affidavit of service is attached to the moving papers. Defendants do not dispute service, however.
This action was commenced on July 12, 2006. The Complaint was signed by Dena Burke, Esq., an attorney affiliated with Plaintiffs' attorneys of record, Schiavetti, Corgan, Soscia, DiEdwards and Nicolson, LLP. The PPG Defendants were served on July 17, 2006. Plaintiffs claim that they suffered economic damages of $1.5 million resulting from asserted defects in epoxy paint products manufactured by Defendants.
In referring to the PPG Defendants, the Court refers to all Defendants, except C.R. Wallauer Co., a retail establishment, who is alleged to have been a distributor who sold the paint in question directly to Plaintiffs. Wallauer has since been voluntarily dismissed from the case, pursuant to stipulation dated June 27, 2007.
On October 17, 2006, Plaintiffs interposed a Notice for Discovery and Inspection, signed by Ms. Burke, demanding that Defendants produce pleadings, transcripts and other documents concerning claims by a company known as "Bullet Works" regarding epoxy paint. "Bullet Works" is, apparently, one of Plaintiffs' competitors. Notably, Plaintiffs did not request any documents relating to their complaints with Defendants' products; they asked only for documents relating to complaints by someone else.
Thereafter, on November 2, 2006, the PPG Defendants served Plaintiffs with a Notice of Discovery and Inspection seeking 10 categories of documents relating to Plaintiffs' claims. These Defendants also served a Demand for Expert Witness Disclosure, a Demand for a Verified Bill of Particulars, and a Notice of Deposition.
This was the status of the matter on December 20, 2006, when Justice Kenneth W. Rudolph, the Justice then assigned to the action, issued a Disclosure Order. The Disclosure Order required that all pertinent Discovery Notices and Demands be served by January 20, 2007 and complied with by March 16, 2007. Examinations before trial were to be held on May 1, 2007 and continue to completion. While counsel were permitted to agree to adjournments, in no event were depositions to continue past June 19, 2007. A compliance conference was scheduled for June 20, 2007.
As noted, the PPG Defendants had already served their disclosure demands and did not serve any more. While Plaintiffs had served only a limited demand (which, as noted, did not seek any documents related to this case), and while Plaintiffs were afforded an additional month to serve more demands, Plaintiffs did not serve any more demands prior to the deadline set by Justice Rudolph.
This action was administratively reassigned to the undersigned as part of a distribution of cases upon this Court's assignment as the second Justice in the Commercial Division effective January 2, 2007.
This case was called in for a conference by this Court on February 9, 2007, to review the status of the action and the status of compliance with Justice Rudolph's Disclosure Order. Counsel were specifically advised that this Court would require them to adhere to the terms and conditions of Justice Rudolph's directives.
Plaintiffs, on the very day of the conference (i.e., February 9, 2007) mailed to Defendants' counsel a second Notice for Discovery and Inspection. This Notice demanded copies of notes and memoranda regarding conversations between the parties, referencing, in particular, a meeting held in March, 2003. This Notice also included a blunderbuss request for all "documents relating to the purchase of paints by plaintiffs from defendants." This notice was signed by Mr. Dewar. At the court conference, counsel for Plaintiffs made a verbal demand to defense counsel for the meeting notes but did not ask for anything else. The Court notes that the demand of February 9, 2007 was served several weeks late.
Plaintiffs did not comply with the discovery demands served upon them by the PPG Defendants back on November 2, 2006. When Plaintiffs defaulted in response, which was due, pursuant to Justice Rudolph's Disclosure Order, on March 16, 2007, the PPG Defendants moved to dismiss the action. The moving papers were served on April 4, 2007. Plaintiffs' counsel contacted defense counsel to promise that the documents requested would be produced and to request an adjournment of the motion. On April 12, 2007 (the day before the return date), defense counsel received some documents and was told more documents would be forthcoming. No Bill of Particulars was served.
This was itself an extension since Plaintiffs' response would have been due in early December, 2006.
On the return date, April 13, 2007, defense counsel argued that the dispute centered around the paint applied to 300 tennis courts around the country and there had been no identification of these courts or who painted them. In response, Mr. Dewar stated that he was put on the case by his law firm toward the end of March, 2007 and he had been in touch with the client who was "getting together all the stuff". Mr. Dewar represented that the client was sending him "more stuff" and he should have sent him more the previous day. Counsel explained that "[s]ome of the stuff was in storage" and the client was assembling it. Mr. Dewar stated that the partner in charge had been on trial, that the case "probably has not gotten the attention it deserves", and that he would "endeavor to give it all the attention possible".
This Court pointed out that Justice Rudolph's order was a court order, "not an offer to negotiate or simply a suggestion". This Court also noted that cases cannot move through the court system if lawyers and their clients act as if court scheduling orders have no meaning. The Court observed that the only way courts can impress upon counsel and their clients that discovery deadlines mean something is to enforce them.
Nevertheless, in order that the action could be determined on its merits, the Court, as a matter of discretion, gave Plaintiffs what it specifically stated would be "the last clear chance". The Court directed Plaintiffs to provide all responsive documents, and a Bill of Particulars, to Defendants by the close of business on April 30, 2007. The Court denied Defendants' motion to dismiss on condition that Plaintiffs complied with these conditions. The Court also scheduled a conference for May 4, 2007 to review compliance with the conditions.
At the close of the conference, Mr. Dewar indicated he had a "few discovery issues", referencing the demand for meeting notes set forth in the February 9, 2007 Notice. The Court agreed to deal with Plaintiffs' request once Plaintiffs had brought themselves into compliance but warned that, since Plaintiffs basically had done nothing until just before the motion was made, and since the Court intended to have disclosure completed roughly within the June 19, 2007 date for completion set by Justice Rudolph, Plaintiffs ought to focus on what was vital to their case.
Counsel appeared before the Court on May 4, 2007. At that time, the Court was advised that Plaintiffs served an unverified Bill of Particulars and produced some documents. In response to the argument by counsel for the PPG Defendants that the documents produced were inadequate, Mr. Dewar represented that the documents produced were the documents that Plaintiffs had. Mr. Dewar specifically represented that he had produced everything that his client had given him. When the Court pointed out that producing all documents the client provided is not the same thing as producing all documents the client has, Mr. Dewar represented that what was produced was "almost all he has".
The Court reminded Mr. Dewar that it had directed that everything had to be produced by April 30. Mr. Dewar rejoined that the client reported that he was still looking through his files and that there "may be more stuff" but it was not known if, in fact, there was anything more.
Under the circumstances, the Court, expressing its incredulity that Plaintiffs could still be looking for documents in a case they had started some ten months earlier, declined to give Plaintiffs more time to look for documents which might or might not exist. In order to get the depositions going, and keep the case on track, the Court ruled that Plaintiffs would be precluded from using any documents that had not been provided to Defendants by April 30, 2007.
As to the Bill of Particulars, Mr. Dewar asserted that it was his oversight that the Bill was not verified. The Court gave Plaintiffs the opportunity to have their Bill verified.
The Court recalled its earlier commitment to deal with the issue of what Plaintiffs wanted by way of discovery. Mr. Dewar stated that what was most important to Plaintiffs was to obtain the notes they believed Defendants had taken of the meeting held between the parties. Defense counsel objected to providing the notes prior to the time that Plaintiffs were deposed, asserting that he wanted to obtain Plaintiffs' version of events without giving Plaintiffs a prior opportunity to review Defendants' notes.
The Court asked Mr. Dewar what other discovery issues existed. Mr. Dewar referred to the original demand for the documents relating to the Bullet Works claim. Defense counsel represented that the only document was a release. Defense counsel represented that Bullet Works had made a claim by telephone and the matter was resolved with a $15,000 payment. Defense counsel stated that there were no documents to produce, other than the release.
The Court held that Defendants could obtain Plaintiffs' deposition without first producing the notes so that Defendants could find out what Plaintiffs had to say before their memories were assisted with Defendants' notes. However, the Court ordered that the notes be turned over immediately after Plaintiffs testified that their memory was exhausted on the subject. In this fashion, if the witness reviewed the notes and want to reflect on something, the witness could address it.
Mr. Dewar also pointed to the blunderbuss demand for all documents relating to the "whole transaction". The Court reminded Mr. Dewar that its prior ruling was that Plaintiffs, because of their lack of diligence, could only seek critical documents. As the Court observed, it did not seem particularly fair for Plaintiffs to sit back, fail to act diligently to locate and produce documents and produce them only spasmodically, and then demand that Defendants search through their records to find every piece of paper possible. Indeed, Mr. Dewar agreed that this would be unfair, as the following exchange indicates:
It is doubtful that this blunderbuss demand was enforceable, in any event, under CPLR 3120.
THE COURT: . . . If your client wasn't willing to do it himself and he's the plaintiff, how can he foist that burden fairly on the defendant? Does that seem fair to you?
MR. DEWAR: No, your Honor.
THE COURT: I am sorry?
MR. DEWAR: No, your Honor.
THE COURT: All right, so you can take it that it doesn't seem fair to me either, so if there are things, as I said, if there are some things that you think are particularly important to your case, I will enforce it to that extent. . . .
The Court re-scheduled the compliance conference that Justice Rudolph had scheduled for June 20, 2007 to June 29, 2007.
At the June 29, 2007 compliance conference, Mr. Dewar requested further documents that were referenced in deposition testimony by Defendants: (a) some 60 photographs of tennis courts; and (b) policies and procedures of Defendants on a testing program for their paint. During the discussion of these requests, it became clear that the parties did not disagree as to the condition of the tennis courts after the paint had been applied to them: there was chalking. Nor did it appear that the testing program was relevant to anything since it was not disputed that the paint did what it was supposed to: the question in the case is whether the paint was the appropriate paint for the tennis courts, Plaintiffs alleging that they were told, first by Wallauer, and then by a representative of PPG, that the particular paint in question was fit for Plaintiffs' purpose.
At the June 29, 2007 conference, the Court expressed its concern that Plaintiffs were trying to obtain broad discovery, notwithstanding Plaintiffs' failure to adhere to the Disclosure Order issued by Justice Rudolph. The Court notes that Plaintiffs, back in October, 2006, before the Disclosure Order, could easily have asked Defendants to produce any photographs of the tennis courts in question and could easily asked Defendants to produce any documents relating to the qualities of the paint in question. Plaintiffs could have done that as well prior to January 30, 2007, the deadline fixed by Justice Rudolph for the service of disclosure demands.
Mr. Dewar now tells the Court that, on June 18 and June 27, 2007, Plaintiffs served additional discovery demands. The June 18 demand seeks the photographs referred to above and the results of any tests performed on paint applied to any paddle tennis courts serviced by Plaintiffs. While asking for test results is somewhat different from asking for testing policies (which is what Mr. Dewar told the Court on June 29 he had asked for), the June 18 demand was at least somewhat consistent with what Mr. Dewar told the Court he was looking for. The June 27 demand sought: photographs of courts serviced by Bullet Works; specification sheets for certain paints; the personnel records of a particular employee; certain polices or procedures of PPG; and the computer hard drive of a certain employee. These demands were not mentioned by Mr. Dewar at the June 29 conference (except to the extent, not presently determinable by the Court, that the demands for policies and procedures related to testing of paint).
In any event, at the June 29, 2007 compliance conference, the Court set a schedule for summary judgment motions and set November 13, 2007 as the trial date. While Mr. Dewar, it may be fairly said, opposed the termination of discovery, Mr. Dewar did not object to either the motion briefing schedule or the trial date selected. However, by letter dated July 1, 2007, Mr. Dewar requested an adjournment of the trial to an unspecified date in January, 2008, because of an engagement of the attorney in his law firm who is going to try this case.
At the June 29, 2007 conference, Mr. Dewar did not indicate that someone else would be trying this case for Plaintiff, much less that there was a conflict in engagement. His adjournment request was denied by letter to all counsel on July 5, 2007, pursuant to N.Y.C.R.R. § 125.1(g). When the Court sets a trial schedule, it means it, though it does give counsel the opportunity to be heard with respect to the date. As it did in this case, the Court endeavors to find as prompt a date as is possible, having regard to the schedules of counsel and any scheduling issues that counsel bring to its attention. In doing so, the Court assumes, as it should have the right to, that counsel who appear before it and select a date either are going to be trial counsel or are knowledgeable regarding the schedules of trial counsel and the witnesses. If the Court cannot make that assumption, then the Court will be unable to schedule its trials in an orderly and efficient manner, as any date would be subject to change and variation as counsel, after a date has been set, make applications to change it.
Turning to the present motion, Mr. Dewar argues, in essence, that the demands of June 18 and June 27 were triggered, in the main, by testimony given on behalf of the PPG Defendants and their depositions. However, Mr. Dewar, in support of his motion, annexes a letter, dated December 6, 2004 (some 18 months before the institution of this action), from PPG to Plaintiffs. In that letter, PPG reports that it had conducted an evaluation of a number of the platform tennis courts at issue and, in particular, refers to a site visit in March, 2003. That letter clearly put Plaintiffs on written notice that PPG had conducted evaluations. The letter also refers to technical data sheets and claims that PPG gave these sheets to Plaintiffs before the paint was applied.
Mr. Dewar does not contend that Plaintiffs failed to receive the December 6, 2004 letter or that Plaintiffs did not have it, either at the time the action was brought or at the time Plaintiffs served their first Demand for Discovery and Inspection in October, 2006 or by January 30, 2007, which was the date provided in Justice Rudolph's Disclosure Order as the last date for the service of disclosure demands. Clearly, Plaintiffs could have timely demanded the production of any documents related to the evaluations (such as photographs and reports) as well as any documents related to the paint in question. Indeed, the Court notes that the PPG Defendants demanded that Plaintiffs produce any documents relating to tests and inspections.
The Court is mindful that parties are entitled to a reasonable time within which to complete discovery. See Lipson v. Dime Savings Bank, 203 AD2d 161 (1st Dept. 1994). Here, Justice Rudolph's Disclosure Order afforded the parties a total of seven months to request document discovery. Neither party objected to this Order. This action was assigned to the Commercial Division pursuant to the designation of the action set forth in the Request for Judicial Intervention filed by Plaintiffs. Rule 13(a) of the Commercial Division Rules specifically provides as follows: "Parties shall strictly comply with discovery obligations by the dates set forth in all case scheduling orders". The Rule further states that intermediate deadlines may be modified upon consent of all parties, "provided that all discovery shall be completed by the discovery cutoff date set forth in the preliminary conference order." The Rule requires that any requests for an extension of a discovery deadline must be made as soon as practicable "and prior to the expiration of such deadline".
This Court enforced Plaintiffs' demands for specific documents to the extent that such demands were made prior to January 30, 2007. Indeed, the Court allowed Plaintiffs discovery of documents (the meeting notes), though same were not requested until a few weeks after January 30, 2007. But the fact that within the offices of Plaintiffs' counsel, this case did not get the attention needed, by Mr. Dewar's own admission, is not good cause to modify a reasonable discovery schedule. Nor have Plaintiffs shown their own diligence in producing their own documents, failing to produce all the documents demanded by April 30, 2007, an extension granted by this Court to give Plaintiffs a "last clear chance".
Plaintiffs' citation to Foster v. Hastings, 122 AD2d 20 (2d Dept. 1986) is apt, though not for the reasons espoused by Plaintiffs. In that case, it was held proper to deny a request for more discovery where the party seeking discovery could have requested the documents in question at an earlier stage of the case and the additional documents were not relevant. Here, as noted above, Plaintiffs had ample opportunity to request documents between the commencement of the action in July, 2006 and January 30, 2007. Indeed, as also noted previously, within that time frame, Plaintiffs chose to request only documents relating to someone else's claim, not their own. Further, at least some of the documents now requested appear to be irrelevant to the issues presented here.
Additionally, as noted above, this request for more discovery appears to the Court to be a ploy designed to try to evade the Court's prior refusal to adjourn the trial of the action.
This case is a far cry from Lipson v. Dime Savings Bank, 203 AD2d 161, supra. In that case, defendant failed to answer discovery demands, despite several requests, until September 9, 1983. By letter to the court, plaintiff requested little more than one month to obtain depositions. Nevertheless, the court, on October 12, 1983, directed the parties to trial on October 18, 1983. As is apparent, the court's scheduling order prejudiced the party who was trying to obtain discovery from a recalcitrant party and gave the recalcitrant party a benefit by scheduling a trial on short notice before plaintiff could complete depositions. In this case, Plaintiffs are the recalcitrant parties, as evidenced by their failure to timely produce documents and their failure to make timely document requests, as well as by Plaintiffs' repeated failures to comply with Court scheduling directions. Further, it is clear that Plaintiffs have not acted here with any degree of diligence, complying with, or serving, discovery demands spasmodically on the eve of, the day of, and shortly after court conferences. Plaintiffs' attention to this case has been driven, not by Plaintiffs' desire to pursue it, but only by the recognition that they had to do something in relation to court-imposed conference and scheduling dates.
The Court notes that, according to defense counsel, Plaintiffs have not served and filed a note of issue, despite the prior order of the Court that they do so. Plaintiffs have evidently helped themselves to the very relief that they are seeking or are otherwise attempting to evade the Court's scheduling orders. Plaintiffs did not even bother to seek a stay of this Court's directive to serve and file a Note of Issue.
The Court has chosen, in this instance, to overlook Plaintiffs' failure to request a pre-motion conference or to otherwise notify the Court of the existence of a discovery dispute. (See Commercial Division Rules 14, 24).
Accordingly, the Court will grant Plaintiffs' motion only to the extent that Plaintiffs are directed to serve and file their Note of Issue and Certificate of Readiness by August 10, 2007. In the event that the Note of Issue and Certificate of Readiness are not served and filed by August 10, 2007, the PPG Defendants may settle an order on notice dismissing this action.
The Court has considered the following papers:
a) Notice of Motion, dated July 12, 2007, and affirmation of Keith Dewar, Esq., dated July 12, 2007, and the exhibits annexed thereto;
b) Affirmation of Glenn Pogust, Esq., dated July 24, 2007, together with the exhibits annexed thereto, submitted with proof of due service in opposition to Plaintiffs' motion;
c) Affirmation of Keith Dewar, Esq., dated August 1, 2007, submitted with proof of due service in support of Plaintiffs' motion.
For the foregoing reasons, and based upon the foregoing papers, it is hereby
ORDERED that Plaintiffs' motion is granted to the extent that Plaintiffs' time to serve and file a Note of Issue and Certificate of Readiness is extended to August 10, 2007; and it is further
ORDERED that, in the event that Plaintiffs fail to serve and file a Note of Issue and Certificate of Readiness by August 10, 2007, the PPG Defendants may settle an order, on notice, providing for the dismissal of this action; and it is further
ORDERED that, except to the extent set forth above, Plaintiffs' motion is denied, with costs.
The foregoing constitutes the Decision and Order of this Court.