Opinion
16757/2009.
Decided January 10, 2011.
Newman and Newman, LLP, by Gregory J. Newman, Esq., Jamaica, New York, for the Plaintiff.
Cheven, Keely Hatzis, Esqs., by John P. Reitano and Eugene N. Neporanny, Esqs., New York, New York, for the Defendant.
The plaintiff moves to strike the answer of defendant Jose Baez for failing to comply with multiple court orders mandating his examination before trial. The defendant, by his counsel, argues that the relief requested is too drastic because the defendant has allegedly been diagnosed with Stage IV cancer.
The action centers around a multi-car collision that occurred on April 22, 2009 in Queens County. This Court, by memorandum decision dated October 19, 2010 and entered by the Clerk on November 19, 2010, has ordered the transfer from Civil Court to this Court of another related action and has ordered the joint trial of the case at bar with two other actions: Edmonds v Baez, Supreme Court, Queens County, Index Number 19503/10, and GEICO Indemnity Co. as subrogee of Dameta Scott and Christopher Coley v Baez, Civil Court, Queens County, Index Number 154640/2009 . Thus far, an order implementing that memorandum decision has not been submitted for the undersigned's review and signature.
The defendant has failed to appear for a court-ordered examination before trial as ordered in a Preliminary Conference order signed by the undersigned on November 2, 2009 and entered by the Clerk on November 19, 2009, and a Compliance Conference order signed by Justice Martin Ritholtz and entered by the Clerk on May 25, 2010.
Thereafter, Justice Roger N. Rosengarten, on October 4, 2010, signed an order requiring the deposition of the defendant Jose Baez to be held on October 12, 2010. To date, the defendant has failed to appear for his examination before trial. The plaintiff, by his counsel, Newman and Newman, LLP, has by notice of motion dated November 8, 2010 and filed on November 9, 2010, moved to strike the defendant's answer.
This Court held a conference on the motion on December 23, 2010. At the conference, the Court invited Eugene N. Neporanny, Esq., of defendant's counsel, to name any date in January 2011 when defendant could appear for his examination before trial. Mr. Neporanny declined to name any date, instead vigorously contending that his client had Stage IV cancer. Plaintiff's counsel, Gregory J. Newman, Esq., correctly pointed out that the exhibit from "Cancercare" attached to the opposition papers alleging that defendant had Stage 4 cancer was not signed by any doctor and that the opposition papers did not contain any affidavit by the defendant.
Pertinent to the present case, where three Justices of this Court have required defendant's attendance at his examination before trial, the undersigned, in prior decisions, has quoted with approval the words of Louis D. Brandeis, made before his ascension as a Justice of the United States Supreme Court. Justice Brandeis stated:
We who are lawyers have a special obligation, and that is to make our law efficient. The disgrace that has come to the law, the discredit, the disrespect which has come to the law, is because it is inefficient, and because we make rules and we do not provide any machinery for enforcing them.
The Social and Economic Views of Mr. Justice Brandeis, at 402 [Alfred Leif ed. Vanguard Press, Inc., 1930] [quoting excerpts of Brandeis's testimony on "Price and Business Incentive" before a United States House of Representatives Subcommittee on May 15, 1912], quoted in The Words of Justice Brandeis, at 120 [Solomon Goldman ed. Henry Schuman, Inc., 1953], and in Perry v Bonneau , 12 Misc 3d 431 , 433 [Sup Ct Queens County 2006] and Garcia v Munnerlyn, 191 Misc 2d 689, 689-690 [NYC Civ Ct Queens County 2002].
As the court in Ortega v City of New York ( 11 Misc 3d 848 [Sup Ct. Kings County 2006]) observed: "Enforcement of court orders goes to the very underpinning of our legal system and without enforcement there would be no rule of law." Id. at 859.
Discovery in this case has occupied the time and energy of three Justices of the Supreme Court, as recited above. Even on this motion, this Court gave the defendant, in an abundance of generosity, another opportunity to state when he would appear for a deposition. In light of the defendant's resistance that has continued from November, 2009, when the Preliminary Conference was held, it can be surmised that his testimony would be damaging to his interests. On this record, especially combined with the insufficient materials concerning defendant's alleged answer, any response other than the striking of the answer would be unwise and improvident.
Just recently, the Appellate Division, Second Judicial Department, in Daniels v City of New York ( 78 AD3d 883 [2nd Dept. 2010]), stated:
"The drastic remedy of striking a pleading pursuant to CPLR 3126(3) for failure to comply with court-ordered disclosure should be granted only where the conduct of the resisting party is shown to be willful and contumacious" [citations omitted].
Here, the appellant's willful and contumacious conduct can be inferred from its repeated failure to comply with the plaintiff's request for documents and the Supreme Court's orders seeking to enforce that request. Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was to strike the appellant's answer. [citations omitted].
Accord, Rawlings v Gillert, 78 AD3d 806 [2nd Dept. 2010]; Giano v Ioannou, 78 AD3d 768 [2nd Dept. 2010]; Lomax v Rochdale Village, Inc. , 76 AD3d 999 [2nd Dept. 2010]; Moray v City of Yonkers , 76 AD3d 618 [2nd Dept. 2010]; Tornheim v Blue White Food Prods. Corp. , 73 AD3d 749 , 750 [2nd Dept. 2010]; Pirro Group, LLC v One Point St., Inc. , 71 AD3d 654 [2nd Dept. 2010]; Byam v City of New York , 68 AD3d 798 [2nd Dept. 2010].
The Court's independent legal research discloses three helpful precedents pertaining to defendant's claim in the case at bar that his alleged advanced cancer prevents his compliance with court-ordered discovery orders. First, in Spira v Antoine ( 191 AD2d 219 [1st Dept. 1993]), plaintiff moved to strike the answer of the defendant, who died during the appeal. The lower court denied the motion, and the Appellate Division affirmed the exercise of the lower court's discretion. The appellate court noted that the lower court did not abuse its discretion given "defendant's illness which was documented by a physician." Id.
In Allstate Insurance Company v Durand 286 AD2d 407 [2nd Dept. 2001], a declaratory action between an insurance company and an insurer centering on the alleged non-cooperation of the insured with the carrier regarding the defense of the underlying lawsuit, the Appellate Division, Second Judicial Department, refused to find a willful failure by the insured to cooperate. The appellate court stated that the plaintiff insurer failed to demonstrate that the insureds were responsible or intentionally uncooperative so as to warrant a disclaimer of coverage. The Second Department observed: "Only once was his [defendant's] deposition rescheduled because [he] was too ill to attend." Id. at 408.
A final, helpful precedent is Enright v Lehmann ( 724 NW2d 546 [Minn Ct App 2006], reversed on other grounds, 735 NW2d 326 [Minn 2007]. In that case, the trial court struck the defendant's answer and permitted the garnishment of two bank accounts. The defendant offered substantial proof to show that he was suffering from a serious, debilitating medical condition and, therefore, unable to respond to discovery requests, even those that had been court-ordered. 724 NW2d at 550. Significantly, the defendant, opposing the motion to strike his answer, submitted the opinions of two physicians on his deteriorating health and his wife's affidavit.
The trial court rejected the defendant's excuses for not engaging in the court-ordered discovery. The intermediate appellate court affirmed the district court and stated, in pertinent part:
The district court rejected Lehmann's excuse for not complying with discovery and the discovery order. The court found that, after the lawsuit was started, Lehmann went to the respondents' attorney's office but did not indicate that he was having medical problems. The court found that, when the attorney served a request for documents, Lehmann called him and said that he would provide what he could. Again he made no mention of his medical condition. The court found that Lehmann did not respond to further discovery efforts or to court orders, including an order to show cause served upon him personally, and that he did not appear at hearings set to deal with the discovery issue. The court acknowledged the opinions of Lehmann's physicians but noted that neither stated that Lehmann was unable to understand the proceedings or that he was "incapable of contacting an attorney or otherwise acting in a manner that would protect his interests in this lawsuit."
Although a serious and debilitating medical condition could be a valid reason for a party's noncompliance with discovery, the record shows that there were multiple contacts with Lehmann extending from February through September 2005, either through discovery requests or court orders, but never any mention by Lehmann of medical problems of such a degree that he could not comply or respond. On this record, the court did not abuse its discretion in determining that Lehmann had not shown a valid, reasonable excuse for his omissions. Because a valid excuse must be demonstrated to obtain the vacation of a default judgment, this failure is sufficient to support the court's ruling.
Id.
The intermediate appellate court, in Enright v Lehmann, concluded:
The sanction of striking pleadings is substantial and should not be levied lightly or for minor deviations. But here the record shows noncompliance with virtually every progressive effort to obtain discovery. The district court was left with little choice other than to impose this sanction and, in doing so, it followed all applicable rules and did not abuse its discretion.
The reversal by the Minnesota Supreme Court, in Enright v Lehmann, was on other grounds, addressing only the propriety of the garnishments and not questioning the striking of the answer and rejection of the excuse that the claimed illness, even supported by multiple affidavits in that case, somehow eliminated the requirement of a litigant to comply with court-ordered discovery.
Unlike Enright v Lehmann, where the defendant submitted opinions of two physicians that described, in stark detail, the seriousness of the defendant's condition and the affidavit of the defendant's wife that stated that his physical condition rendered him "nonfunctional'" ( 724 NW2d at 550), the proof submitted by defendant Jose Baez and his attorney, in the present action, is negligible. Neither defendant nor his counsel furnish any medical proof in proper form. There is no affirmation by any doctor or any affidavits by another health care provider or relatives or friends of the defendant to discuss his functioning or inability to give testimony from November, 2009, to the present. The only proof is a letter by Baez's attorney, John P. Reitano, Esq., dated October 29, 2010, sent only a few weeks after Justice Rosengarten's court order requiring defendant's testimony at an examination before trial. The letter of October 29, 2010 urged defendant to appear for a deposition or to provide "a doctor's note briefly identifying your illness and inability to participate in this lawsuit."
The defendant, in response to the letter of his attorney, Mr. Reitano, responded by sending him two unresponsive pages on a "Cancercare" letterhead that are dated September 7, 2010 — six weeks before the date of Mr. Reitano's letter. In the portion dealing with "Financial Aid," a date of diagnosis is written as July, 2010, and primary cancer is listed as "unknown", but indicating it is in "Stage IV." No explanation is rendered anywhere in defendant's opposition papers as to the significance of the alleged "Stage IV" cancer. No information is provided by defense counsel's hearsay affirmation as to who wrote that alleged diagnosis in an "application for Financial Assistance," and the defendant's prognosis. On this first page of an "Application for Financial Assistance," the physician of the defendant is listed as Javier Roca, but the portion of "Signature of MEDICAL PROFESSIONAL" [underscoring and capital letters in the original] is left blank. Thus, it may not be Dr. Roca or any doctor that rendered the diagnosis of "Stage IV cancer" in the unsigned report.
According to the online encyclopedia, www.wikipedia.org, concerning "Cancer Staging," cancers are described by Roman numeral designation from I to IV to describe the extent to which a malignant tumor has spread. "Stage IV cancers have often metastasized or spread to other organs or throughout the body." Id. Defense counsel's papers provides no explanation or elaboration of the unconfirmed "diagnosis" of "Stage IV cancer."
Opposing the plaintiff's motion to strike, Mr. Reitano, in his affirmation, writes: "On or about June 23, 2010, my office learned that the defendant would not be able to appear for his deposition without assistance." Mr. Reitano continues that in July, 2010, the defendant was "recently diagnosed with Cancer and that an operation in the near future was being considered." No reason is given why defendant failed to abide by the court orders of the undersigned of November 2, 2009 and that of Justice Martin Ritholtz entered on May 25, 2010, both requiring defendant's testimony at a deposition.
Mr. Reitano's inadmissible statements, made without personal knowledge, are not accompanied by any affidavit of the defendant, any family member or friend of the defendant, or any doctor or healthcare provider.
While defense counsel at the conference of this motion on Dec. 23, 2010 aggressively asserted defendant's alleged Stage IV cancer as an excuse for not complying with three separate court orders to furnish his deposition, the argument was not supported by any proof of an admissible sort. The defendant did not even attempt to assemble the type of substantial proof that was furnished in Enright, that the lower courts still rejected. Neither of the two exhibits submitted to this Court in opposition to the motion to strike shows that Baez "was unable to understand the proceedings or that he was incapable of contacting an attorney or otherwise acting in a manner that would protect his interests in this lawsuit.'" 724 NW2d at 550.
This Court, therefore, grants the plaintiff's motion and strikes the defendant's answer. Upon the filing of a note of issue, the Court will hold an inquest on the plaintiff's damages to be held in abeyance pending the joint trial of the other two related actions referred to above. The parties are also urged to settle an order on this Court's prior Memorandum Decision of November 19, 2010, ordering a joint trial.
Plaintiff's counsel shall serve notice of entry of this Court's Decision and Order, striking the defendant Baez's answer, in a copy that contains the Clerk's stamped date of entry, upon the defendant's counsel in this action and upon all parties in the other actions that were ordered by this Court to be joined for trial.
The foregoing constitutes the decision, opinion, and order of the Court.