Opinion
1013-02.
Decided August 27, 2004.
ORDERED that this motion by defendant to preclude and cross-motion by plaintiff to strike, are decided insofar as indicated below.
This action for breach of contract was commenced on January 2, 2002 to recover unpaid sums allegedly due plaintiff for labor, services and materials provided at the request of the defendants. On August 21, 2003, all parties appeared before this court for a preliminary conference at which time a Stipulation and Order was entered requiring that a demand for a bill of particulars be served by both parties on or before October 31, 2003 and that the bill of particulars be served by both parties on or before December 15, 2003. Also scheduled were depositions, to be held on January 22, 2004 and a compliance hearing on December 18, 2003. On October 29, 2003, plaintiff's counsel maintains that his office served plaintiff with a Demand for a Verified Bill of Particulars, to which no response has been received, to date, although plaintiff's attorney did fax an unsigned draft of said bill to the plaintiff, with whom he has allegedly had no contact. Defendant's counsel avers that plaintiff has made no motion to vacate or modify his demand and states that the time to respond has expired and has not been extended. Also troublesome is the fact that plaintiff failed to appear for scheduled depositions on two occasions. Defendants now move this Court to preclude plaintiff from giving evidence at the trial in this action regarding the matters for which demands and particulars have not been delivered pursuant to CPLR 3042(c); and striking the complaint and dismissing plaintiff's action pursuant to CPLR 3126. In support of his application, plaintiff has appended copies of his various correspondence regarding plaintiff's noncompliance with discovery-related court orders; a copy of the summons, verified complaint and verified answer; a copy of the Preliminary Conference Stipulation and Order dated August 21, 2003; a copy of a transcript obtained at the deposition scheduled for March 17, 2004, at which plaintiff failed to appear; and a copy of a stipulation rescheduling the date of the parties depositions to April 29, 2004. In response, plaintiff's counsel has cross-moved this court for leave to withdraw as counsel, stating that the allegations contained in defendants' motion are correct; maintaining that his client has not contacted him in several weeks; that plaintiff had failed to appear at depositions despite his promise to do so; and that his client has wholly failed to exhibit any indicia of continued cooperation.
First to be addressed is defendants' application for preclusion and other related relief. It is well settled that a trial court has broad discretion in supervising discovery ( see, Vasile v. Chisena , 272 AD2d 610, 707 NYS2d 681 [2d Dept 2000]). Although the drastic remedy of striking a pleading pursuant to CPLR 3126 for failure to comply with court-ordered disclosure should be granted only where the conduct of the resisting party is shown to be willful, contumacious, or in bad faith, it is equally well settled that where a party disobeys a court order and his or her conduct frustrates the disclosure scheme provided for the CPLR, dismissal of a pleading is within the broad discretion of the trial court ( see, Zletz v. Wetanson , 67 NY2d 711, 713, 499 NYS2d 933; Frias v. Fortini , 240 AD2d 467, 658 NYS2d 435 [2d Dept 1997]; Scharlach v. Richmond Memorial Hospital , 127 AD2d 580, 511 NYS2d 380 [2d Dept 1987]; Battaglia v. Hofmeister , 100 AD2d 833, 473 NYS2d 838 [2d Dept 1984]). A conditional order of preclusion has also been held by the Appellate Division, First Department, to constitute a proper exercise of the court's discretion ( see, Crawford v. Toyota Motor Credit Corp. , 283 AD2d 184, 724 NYS2d 595 [1st Dept. 2001]; Campbell v. Peele , 289 AD2d 141, 734 NYS2d 449 [1st Dept. 2001]; Green v. Mohamed , 275 AD2d 599, 712 NYS2d 861 [1st Dept. 2000]).
Under the facts and circumstances presented herein, the Court declines to strike the pleadings herein and instead issues a conditional order of preclusion pursuant to CPLR 3126, conditionally striking plaintiff's pleadings, conditionally deeming all issues as to which demands have not been responded to and particulars not furnished to be resolved in favor of the defendants, and conditionally precluding the plaintiff from offering any testimony or evidence or from disputing or challenging any evidence or testimony presented or offered by or on behalf of the defendants on such issues. Such order will become a final order of preclusion, without need for further application to the court, should plaintiff fail to appear to be deposed at 10:00 a.m. on Wednesday, October 13, 2004 at Suffolk County Supreme Court, 400 Carleton Avenue, Central Islip, or at a location mutually agreed upon. The Court further directs that such depositions be continued day to day until their conclusion. No deviations from the date scheduled will be tolerated. Plaintiff is directed to file the note of issue on or before December 1, 2004, so that this action may expeditiously be scheduled for pre-trial conference and placed on the trial calendar.
Also to be addressed is defendants' application for an award of sanctions, in the form of costs. Pursuant to Part 130 of the Uniform Rules for the New York State Trial Courts, a court, in its discretion, may award costs and impose sanctions for frivolous conduct in a civil action or proceeding ( 22 NYCRR § 130-1.1[a]). Conduct is regarded as frivolous if "it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law," if "it asserts material factual statements that are false," or if it is undertaken to "delay or prolong the resolution of the litigation, or to harass or maliciously injure another" ( 22 NYCRR § 130-1.1[c]). When determining whether conduct is frivolous and, therefore, sanctionable, a court must consider the circumstances under which the conduct took place and whether or not the conduct was continued when its lack of legal or factual basis was apparent or should have been apparent ( 22 NYCRR § 130-1.1[c]). Sanctions "may be awarded 'only upon a written decision setting forth the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate'" ( Holloway v. Holloway , 260 AD2d 898, 688 NYS2d 809 [3d Dept. 1999], citing 22 NYCRR 130-1.2). It must also be noted that "the sanction imposed should be substantial enough to serve as a deterrent to dilatory behavior in the future" ( Lichter v. State , 198 AD2d 687, 689, 603 NYS2d 644 [3d Dept. 1993]; see, Siegel, Practice Commentaries, McKinney's Cons Law of NY, Book 7B, CPLR C3216:6, at 637). In the instant case, the court finds that plaintiff's conduct in failing to appear and be deposed on March 17, 2004 and April 29, 2004 was frivolous within the meaning of 22 NYCRR § 130-1.1.Sanctions in the amount of $500.00 are therefore imposed upon plaintiff, in an effort to deter such conduct in the future.
Also to be addressed is plaintiff's cross-motion to be relieved as counsel. Disciplinary Rule 2-110(C)(1)(d) of the Code of Professional Responsibility provides, in substance, that a lawyer may withdraw from legal representation of a client if such client, by his or her conduct, renders it unreasonably difficult for the lawyer to perform the duties for which he or she was retained. Once good and sufficient cause for such withdrawal has been shown, an attorney may withdraw as counsel of record upon reasonable notice to the client ( see, Williams v. Lewis , 685 NYS2d 382, 258 AD2d 974 [4th Dept. 1999]; LeMin v. Central Suffolk Hospital , 565 NYS2d 190 {169 AD2d 821}; 169 AD2d 821 [2d Dept. 1991]; Bucaro v. Keegan , 483 NYS2d 564, 126 Misc2d 590 [Sup. Ct., New York Co. 1984]; Matter of Dunn , 205 NY 398).
The above-enunciated standard has been satisfied. In Kiernan v. Kiernan , 233 AD2d 867, 649 NYS2d 612 (4th Dept 1996), the appellate court held that the lower court had improvidently exercised its' discretion in denying counsel's motion to withdraw where the client had refused to speak with anyone from the law firm, thereby rendering it unreasonably difficult for the firm to carry out its' employment effectively ( see, Galvano v. Galvano , 193 AD2d 779, 598 NYS2d 298 [2d Dept 1993]; Kay v. Kay , 245 AD2d 549, 666 NYS2d 728 [2d Dept 1997]). Withdrawal of counsel was also found to have been properly permitted where the client, with respect to whose case counsel sought to withdraw, refused to accept counsel's advise ( see, Ashker v. International Business Machines Corp. , 201 AD2d 765, 607 NYS2d 488 [3d Dept. 1994]). Moreover, it is clear that counsel's desire to withdraw has been properly communicated in clear and unambiguous language ( see, Bucaro , supra).
Accordingly, counsel is granted leave, pursuant to CPLR Section 321 (b)(2), to withdraw as the attorney of record in the subject action. Inasmuch as counsel's withdrawal from this action is voluntary in nature, no stay of the proceedings herein need be imposed ( see, CPLR Section 321[b][2]). The legislature, in promulgating CPLR Section 321(b)(2), which codified the procedure by which an attorney may withdraw from representation, declined to specify the manner in which service of the requisite notice of withdrawal was to be provided, instead determining that the manner in which service was to be effectuated was best relegated to the discretion of the court, said discretion to be exercised on a case by case basis ( see, Wong v. Wong , 622 NYS2d 985, 213 AD2d 399 [2d Dept. 1995]). The Court therefore directs that service be accomplished by certified mail upon the plaintiff, within fourteen days of the date of this order. It is further ordered that service of the within decision and order shall constitute notice upon the defendant to appoint successor counsel, pursuant to CPLR 321(c).