Opinion
Index No. 504935/2022 Motion Seq. No. 12
05-28-2024
MELISSA SILLA, Plaintiff, v. THOMAS SILLA, JR., Defendant.
Unpublished Opinion
At a Matrimonial Term, Part 5Z, of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse thereof, 360 Adams Street, Brooklyn, New York, on the 28th day of May, 2024.
PRESENT: CHERYL J. GONZALES, J.S.C.
DECISION AND ORDER
Cheryl J. Gonzales Judge:
Recitation, as required by C.P.L.R. § 2219 (a), of the papers considered in the review of this motion.
Papers Numbered
Defendant's Notice of Motion, Affirmation, Affidavit NYSCEF Doc. #139-140
Defendant's Order to Show Cause, Affirmation NYSCEF Doc. # 154 - 155
Plaintiffs Affidavit in Opposition NYSCEF Doc. # 164
Exhibits NYSCEF Doc. # 141 - 149; 156- 160; 165-169
Upon the foregoing cited papers, and all prior proceedings in this plenary action, the decision and order on this motion is as follows:
Plaintiff, Melissa Silla, pro se, commenced this plenary action on February 17, 2022 upon filing a Summons and Complaint in which Plaintiff requested an order enforcing the terms of the parties' separation agreement. Defendant, Thomas Silla, Jr., appeared by counsel and interposed a Verified Answer with Counterclaims on March 14,2022. Plaintiff interposed an Answer to Defendant's Counterclaims on April 12, 2022.
Defendant moved by Notice of Motion on March 29, 2024 seeking an Order: (1) pursuant to CPLR § 3126 dismissing the Complaint of the Plaintiff and the Reply to counterclaims interposed by the Plaintiff for the failure to attend the deposition set for March 27, 2024; (2) upon dismissing the Complaint of the Plaintiff and the reply to Counterclaims interposed by Plaintiff, setting this matter down for inquest as to the counterclaims asserted in the Answer of the Defendant; (3) pursuant to NYCRR 130, et seq., sanctioning the Plaintiff in the amount of $10,000.00; (4) directing that the sanction imposed by the Court by Order dated November 13, 2023 be paid forthwith; (5) for such other further and different relief as to this court is just and proper.
According to Defendant, Plaintiff failed to appear for her deposition which was scheduled for May 23,2023 pursuant to the Compliance Conference Order dated April 17, 2023 which directed that the deposition take place on or before May 23,2023. Defendant states that Plaintiff's deposition was rescheduled to September 27, 2023 and was not completed due to the Plaintiff's actions. Defendant explains that pursuant to the Decision and Order of the court dated February 27, 2024, Plaintiff's deposition was to be completed by March 31, 2024.
Defendant states that on Thursday, March 21, 2024, Defendant's counsel sent an email to Plaintiff offering three dates for her deposition to take place: March 25, 2024, March 27, 2024 or March 28, 2024. Defendant states that upon not hearing from Plaintiff, the deposition was scheduled for March 27, 2024 at 2:00pm. Defendant recalled that Plaintiff responded to Defendant's email on Saturday, March 23, 2024 and indicated that she was unable to complete the deposition on the proposed dates. Specifically, Plaintiff stated, "An sorry but none (sic) of these dates work far me. Maybe we can ask the judge for an extension,"
According to Defendant, on March 25,2024, Defendant's counsel advised Plaintiff that her response was not acceptable. Further, Plaintiff did not appear for the scheduled deposition on March 27, 2024. Defendant states that it was improper for Plaintiff to not notify Defendant's counsel that she would not be present for the deposition. Moreover, Plaintiff failed to contact the court and request an extension.
Defendant states that this is the third time Plaintiff has violated court Orders regarding the deposition and she continues to avoid her responsibility to be present. Defendant requests an Order finding Plaintiff in violation of discovery and requests sanctions in the sum of $ 10,000.00 in accordance with NYCRR 130, et seq. Moreover, Defendant states that this Court issued an Order dated November 13, 2023 which directed Plaintiff to pay a sanction of $750.00. However, despite an application to enforce it, the Court did not set a time for payment to be made and Defendant requests that the sanction be paid forthwith. Further, Defendant requests an Order sanctioning Plaintiff the sum of $4,170.00 which represents the amount of $ 4,125.00 which was incurred by having to file the instant motion plus the filing fee of $45.00.
Plaintiff opposes the motion and contends that she has previously informed Defendant that she needs 30 days' notice to request off from work. Plaintiff states that Defendant's notice on March 21, 2024 for a deposition to take place on March 25, 2024, March 27, 2024 and/or March 28, 2024 is wholly insufficient notice. Plaintiff states that even though she informed Defendant's counsel that she was unavailable. Defendant's counsel improperly scheduled the deposition any way. Plaintiff states that according to CPLR 31.07, she should have been given at least 20 days' notice of the date and time the deposition was scheduled to take place. Instead, she was given a matter of days. Plaintiff maintains that she should not be sanctioned or be responsible for Defendant's counsel fees because it was Defendant who is failed to comply with court rules.
In reply, Defendant states that Rule 3107 has no relevance to this proceeding as CPLR 3107 is a discovery device concerning a notice to take deposition. The violation before the court right now involves the Defendant's continued refusal to attend and complete her deposition pursuant to court orders. Defendant's counsel states that Plaintiff's statement that she was unable to get the time off must be tempered by the fact that she did not advise her superiors of her requirement to participate in a court ordered depositions. Defendant states that Plaintiff could have attended the deposition and is deceiving the court by stating that she was unable to take off from work.
Dismissal of the Complaint
" If the credibility of court orders and the integrity of our judicial system are to be maintained a litigant cannot ignore court orders with impunity'' o(see Kihl v. Pfeffer, 94 N.Y.2d 118, 123, 700 N.Y.S.2d 87 [1999]. It is understood that the courts must be able to command compliance with their disclosure directives, and CPLR 3126 provides that a "court may make such orders ... as are just," including dismissal o f an action. Id.,
A trial court may dismiss the complaint under CPLR 3126 where there is a clear showing that the failure to comply with court-ordered discovery is willful or contumacious (Halyard v. Magellan Aerospace N.Y, Inc., 221 A.D.3d 592, 593, 199 N.Y.S.3d 590 [2nd Dept., 2023] see also Ewa v City of New York, 186 A.D.3d at 1196; Ahmed v Ahmed, 175 A.D.3d 1363, 1365,109 N.Y.S.3d 200 [2019]). "A court can infer that a party is acting willfully and contumaciously through the party's repeated failure to respond to demands or to comply with discovery orders" (Sepulveda v 101 Woodruff Ave. Owner, LLC, 166 A.D.3d 835, 836, 89 N.Y.S.3d 89 [2018]; see Sweet Constructors, LLC v Wallkill Med. Dev., LLC, 188 A.D.3d 1279, 1280, 132 N.Y.S.3d 871 [2020]).
Further, the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court" (Von Maack v. Wyckoff Hgts. Med, Ctr., 195 A.D.3d 769, 770, 150 N.Y.S.3d 113 [2nd Dept, 2021] see also Williams v Suttle, 168 A.D.3d 792, 793, 91 N.Y.S.3d 447 [2019]; see Pastore v Utilimaster Corp., 165 A.D.3d 685, 686. 84 N.Y.S.3d 547 [2018]).
Defendant contends the drastic remedy of striking the Complaint is warranted because Plaintiff failed to attend her scheduled deposition several times. However, Defendant failed to provide Plaintiff with sufficient notice of the date in which the deposition would be scheduled. Defendant insists that an email sent to Plaintiff on Thursday, March 21, 2024 which included three dates for her deposition to take place, all of which were a few days apart, is sufficient notice. However, Defendant was informed in this Court's decision dated August 9, 2023 that "it was Defendant's responsibility to provide reasonably sufficient notice to Plaintiff of his intention to schedule her deposition,, " It is incredible that Defendant believes that an email sent on March 21,2024 at 6:47pm which included proposed deposition dates of March 25,2024, March 27, 2024 or March 28, 2024 is sufficient notice to Plaintiff. In addition, it is implausible that upon not hearing from Plaintiff, Defendant sent an email to Plaintiff on March 22, 2024 at 3:16 pm which informed her that the deposition has been scheduled for March 27,2024 at 2:00pm. It should be noted that Plaintiff informed Defendant by email dated March 23, 2024 at 11:22 am that she would be unable to attend. Defendant had time to reschedule the deposition and chose not to, an action which is wholly prejudicial to Plaintiff and disingenuous.
NYSCEF Document# 137.
In addition, Defendant's counsel position that Plaintiff is being disingenuous with her statement that she could not get the time off of work is unavailing. Defendant's counsel states that he conducted "research" which involved taking an "opportunity to speak to about a half a dozen court officers (in different commands), some of whom were in supervisory positions... a generic question as to whether time off would be afforded to a court officer to participate in a court proceeding... the universal answer was yes - upon production of the appropriate document(s) advising of the necessity of the appearance. " However, the court gives no weight to this "research". Plaintiff previously stated in open court that she needed to give her Command adequate notice. The court notes that each Court Officer Command operates differently, and Plaintiff is not bound by the procedures of any Command but the one where she is employed.
NYSCEF Document # 193.
Regarding Plaintiff's claim that Defendant should have provided her with 20 days' notice of the date of the deposition, the court also notes that in its Decision and Order dated August 9,2023, the court informed Plaintiff that her reliance on CPLR § 3107 as requiring 20 days' notice is misplaced as Plaintiff is a party to this action. While Defendant's counsel was required to provide Plaintiff with notice, there is no requirement that 20 days' notice is required under CPLR §3107.
Therefore, Defendant's request for an Order pursuant to CPLR § 3126 dismissing the Complaint of the Plaintiff and the Reply to counterclaims interposed by the Plaintiff for the failure to attend the deposition set for March 27,2024 and upon dismissing the Complaint of the Plaintiff and the reply to Counterclaims interposed by Plaintiff, setting this matter down for inquest as to the counterclaims asserted in the Answer of the Defendant is denied.
Sanctions Pursuant to NYCRR 130
Defendant requests an Order pursuant to NYCRR 130, et seq., sanctioning the Plaintiff in the amount of $10,000.00.
The court has been given the authority to award any party or attorney in any civil action or proceeding before the court costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part (22 NYCRR § 130-1.1 (a)). Conduct is frivolous if (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false (see 22 NYCRR § 130-1.1 (c)).
In addition to, or in lieu of, awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Part. Defendant has failed to establish that Plaintiff s conduct has been frivolous. As stated above, Plaintiff responded to Defendant's counsel's email two days after it was initially sent and informed that the dates provided by Defendant were not feasible. Contrary to Defendant's assertion, Plaintiff did not appear for the unilaterally scheduled deposition as a result of not being available due to the last-minute notice. Defendant has failed to establish that Plaintiffs actions were completely without merit, cannot be supported by a reasonable argument, were undertaken to delay or prolong the resolution of the litigation, or to harass or injure Defendant.
In addition, the court does not find that Plaintiffs absence from Defendant's scheduled deposition constitutes willful and contumacious conduct.
Therefore, Defendant's request for an Order pursuant to NYCRR 130, et seq., sanctioning the Plaintiff in the amount of $ 10,000.00 is denied.
Requirement to Pay $750.00 Sanction
Pursuant to the Order dated November 13, 2023, Plaintiff was required to pay directly to Defendant's counsel the sum of $750.00 which represents reimbursement for actual expenses reasonably incurred as a result of Plaintiff s counsel's failure to appear for trial on November 13, 2023. According to Defendant, Plaintiff has not made a payment towards the balance owed.
Plaintiff requested a payment plan in order to fulfil her requirement to make the payment pursuant to the Order.
Therefore, Defendant's request for an Order directing that the sanction imposed by the Court by order dated November 13,2023 be paid forthwith is granted. Plaintiff shall pay the sum of $375.00 directly to Defendant's Counsel, Anthony Bramante, Esq,, 26 Court Street, Ste. 514, Brooklyn, New York 11242, within 45 days of the date of this Order, and the remaining $375.00 within 45 days of the first payment.
Conclusion
Defendant argues that it is troubling that the court allowed Plaintiff to submit late opposition to Defendant's motion when pursuant to CPLR 2214 (b), opposition papers were required to be served seven days prior to the return date as noticed. However, as stated above, Defendant has failed to substantiate his claim for relief on the motion without the court's consideration of Plaintiffs opposition.
In accordance with the foregoing, it is hereby:
ORDERED that Defendant's motion (motion sequence no. 12) is granted to the extent as Ordered; and it is further
ORDERED that Plaintiff shall pay the sum of $375.00 directly to Defendant's Counsel, Anthony Bramante, Esq., 26 Court Street, Ste. 514, Brooklyn, New York 11242, within 45 days of the date of this Order, and the remaining $375.00 within 45 days of the first payment.
This constitutes the decision and order of the court.