Opinion
11748N Index 103804/12
07-02-2020
Hugh WYATT, Plaintiff–Appellant, v. Pierre SUTTON, Defendant–Respondent.
Hugh Wyatt, appellant pro se. James E. McMillan, P.C., New York (Douglas Kenneth Doneson of counsel), for respondent.
Hugh Wyatt, appellant pro se. James E. McMillan, P.C., New York (Douglas Kenneth Doneson of counsel), for respondent.
Richter, J.P., Kapnick, Webber, Gesmer, Moulton, JJ.
Order, Supreme Court, New York County (David B. Cohen, J.), entered February 8, 2019, which granted defendant's motion to strike the complaint and dismiss the action, unanimously affirmed, without costs.
The IAS court did not improvidently exercise—let alone clearly abuse—its discretion by dismissing this action after plaintiff failed to comply with two so-ordered stipulations and an October 2018 conditional order that gave him a final chance to comply. Plaintiff was warned that, if he did not comply strictly and completely, defendant could move to dismiss (see e.g. Fish & Richardson, P.C. v. Schindler, 75 A.D.3d 219, 220, 222, 901 N.Y.S.2d 598 [1st Dept. 2010] ).
Plaintiff claims "[t]here was no evidence of a pattern of obstructive or dilatory behavior on [his] part" ( Kaplan v. KCK Studios, 238 A.D.2d 264, 657 N.Y.S.2d 26 [1st Dept. 1997] ). However, a "repeated failure ... to produce, despite express orders to do so, amply demonstrates wilfulness and the lack of any reasonable excuse for such failure" ( Oasis Sportswear, Inc. v. Rego, 95 A.D.3d 592, 944 N.Y.S.2d 101 [1st Dept. 2012] ). Moreover, plaintiff's failure to avail himself of the newly extended deadline set forth in the October 2018 order "demonstrates that [his] noncompliance was willful, contumacious, or due to bad faith" ( Loeb v. Assara N.Y.I L.P., 118 A.D.3d 457, 987 N.Y.S.2d 365 [1st Dept. 2014] [internal quotation marks omitted] ). Finally, our review of plaintiff's June 15, 2017 deposition transcript amply confirms the IAS court's comment that plaintiff was wholly uncooperative.
Lastly, plaintiff contends that the court failed to properly consider his pro se status and medical issues. However, "[p]roceeding pro se is not a license to ignore court orders" ( Couri v. Siebert, 48 A.D.3d 370, 371, 853 N.Y.S.2d 296 [1st Dept. 2008] ; see also Pagano v. Malpeso, 96 A.D.3d 563, 946 N.Y.S.2d 475 [1st Dept. 2012] ). Unlike the precedents cited by plaintiff, which involve one-time failures to comply due to medical issues, plaintiff did not raise his illness until his October 11, 2017 deposition and only then in opposition to defendant's first motion to strike the complaint.