Opinion
Index No. 401896/2012 Seq. No. 001
06-19-2013
JUSTINA TORRES, as Administratrix of the Estate of RUBEN TORRES, Plaintiff, v. THE CITY OF NEW YORK and KIEWIT CONSTRUCTORS INC., Defendant.
DECISION/ORDER
PRESENT:
Hon. Kathryn E. Freed
J.S.C.
HON. KATHRYN E. FREED: RECITATION, AS REQUIRED BY CPLR§2219 (a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION.
+---------------------------------------------------+ ¦PAPERS ¦NUMBERED¦ +------------------------------------------+--------¦ ¦NOTICE OF MOTION AND AFFIDAVITS ANNEXED ¦1-2 ¦ +------------------------------------------+--------¦ ¦ORDER TO SHOW CAUSE AND AFFIDAVITS ANNEXED¦ ¦ +------------------------------------------+--------¦ ¦ANSWERING AFFIDAVITS ¦ ¦ +------------------------------------------+--------¦ ¦REPLYING AFFIDAVITS ¦ ¦ +------------------------------------------+--------¦ ¦EXHIBITS ¦3-5 ¦ +------------------------------------------+--------¦ ¦OTHER ¦ ¦ +---------------------------------------------------+
UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THE MOTION IS AS FOLLOWS:
Defendants move for an Order pursuant to CPLR§3126, dismissing plaintiff's Complaint for failure to comply with discovery demands, or, in the alternative; pursuant to CPLR§3042, precluding plaintiff from offering evidence at the trial of this action as to matter of which particulars have been sought but not provided, or in the alternative, pursuant to CPLR§3124, compelling plaintiff to comply with said discovery demands.
No opposition has been submitted. After a review of the instant motion, all relevant statutes and case law, the Court grants said motion in part and denies it in part. Factual and procedural background:
This is an action for the wrongful death of plaintiff decedent who on June 13, 2009, fell from the southern approach to the Willis Avenue Bridge on the Manhattan side to the street below, and landed on the southeast corner of 125th Street and Marginal Street, in New York County.
Plaintiff initially commenced this action in Bronx County Supreme Court against the City and Kiewit, indicating that the basis of venue was "Location of Tort" and "Decedent's Residence." However, upon defendants' motion, the venue of this matter was subsequently changed to New York Supreme Court. Plaintiff filed a Notice of Claim against the City on September 2, 2009. Plaintiff then commenced the instant suit via the filing of a summons and complaint in Bronx Supreme Court on May 3, 2010. Subsequently, defendants joined issue via the service of a verified answer on May 26, 2010. On July 13, 2012, defendants requested that plaintiff serve responses to their respective demands. Furthermore, defendants have telephoned plaintiff's counsel reiterating their request for a response. To date, defendants have not received any response from plaintiff.
Defendants argue that the time in which a Bill of Particulars and responses to discovery demands, other than the deposition notice, could be timely served has clearly passed. Additionally, plaintiff has failed to comply with discovery and has also failed to request an extension of time to comply.
It is well settled that "[t]he nature and degree of the penalty to be imposed pursuant to CPLR 3126 rests within the discretion of the Supreme Court (see Raville v. Elnomany, 76 A.D.3d 520 [2d Dept. 2010], lv dismissed 16 N.Y.3d 739 [2011]; Negro v. St. Charles Hosp. & Rehabilitation Ctr., 44A.D.3d 727, 728 [2d Dept. 2007]; Rawlings v. Gillert, 78 A.D.3d 806 [2d Dept. 2010]; Pinto v. Tenenbaum, 105 A.D.3d 930 [2d Dept. 2013]). [W]hen a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is well within the Trial Judge's discretion [to dismiss a pleading]' (Kihl v. Pfeffer, 94 N.Y.2d 118, 122 [1999]).
However, strong public policy favors the resolution of cases on the merits (see Negro v. St. Charles Hosp. & Rehabilitation Ctr., 44 A.D.3d at 728 ]. Moreover, the drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery demands is willful or contumacious (see Laskin v. Friedman, 90 A.D.3d 617, 617-618 [2d Dept. 2011]; Nunez v. Long ls. Jewish Med. Ctr.-Schneider Children's Hosp., 82 A.D.3d 724 [2d Hosp. 2011 ]; Hoi Wah Lai v. Mack, 89 A.D.3d 990 [2d Dept. 2011]; Polsky v. Tuckman, 85 A.D.3d 750 [2d Dept. 2011]).
"Willful and contumacious" conduct may be inferred from a party's repeated failure to comply with court ordered discovery, coupled with inadequate explanations for the failure to comply' (Savin v. Brooklyn Mar. Park Dev. Corp., 61 A.D.3d 954, 954-955 [2d Dept. 2009], or a failure to comply with court ordered discovery over an extended period of time' ( Pappas v. Papadatos, 38 A.D.3d 871, 872 [2d Dept. 2007]; see also Russell v. B&B Industries, Inc., 309 A.D.2d 914, 915 [2d Dept. 2003]).
Under the circumstances of the case at bar, the Court finds that dismissal of the complaint at this time is unwarranted. The Court notes that while defendants have annexed the aforementioned letter to plaintiffs counsel as Exhibit "D," this is not sufficient evidence that plaintiff's failure to comply can be classified as "wanton and contumacious." Indeed, there is no evidence that plaintiff disregarded any previous orders rendered by the court to comply with discovery or face the consequences.
Therefore, in accordance with the foregoing, it is hereby
ORDERED that the component of defendants' motion to dismiss plaintiff's complaint pursuant to CPLR§ 3126 or preclude plaintiff from offering evidence at trial as to matters of which particulars have been sought but not provided pursuant to CPLR§ 3024, is hereby denied and it is further
ORDERED that the component of defendants' motion pursuant to CPLR§ 3124 is granted to the extent that plaintiff is ordered to comply with all defendants' discovery demands, including a Bill of Particulars, within thirty days (30 days) of this order; and it is further
ORDERED that upon plaintiff's failure to comply with this order shall result in the striking of its Answer; and it is further
ORDERED that defendants shall serve a copy of this order on plaintiff and the Trial Support Office at 60 Centre Street, Room 158; and it is further
ORDERED that this constitutes the decision and order of the Court.
ENTER:
_________________
Hon. Kathryn E. Freed
J.S.C.