From Casetext: Smarter Legal Research

Kihl v. Pfeffer

Court of Appeals of the State of New York
Nov 30, 1999
94 N.Y.2d 118 (N.Y. 1999)

Summary

affirming trial court's striking of complaint where plaintiff failed to correct initial interrogatory responses that were "not responsive" and "lack[ed] any reasonable detail"

Summary of this case from BS Kings Cnty. Med., P.C. v. State Farm Mut. Auto Ins. Co.

Opinion

Argued October 2, 1999.

Decided November 30, 1999

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, (Allan L. Winick, J.), Nassau County

Thomas F. Gleason, for appellant.

Eric A. Portuguese, for respondent.


At issue is the dismissal of a complaint against defendant Honda Motor Co., Inc. for plaintiff's failure to respond to Honda's interrogatories within court-ordered time frames. We conclude that the trial court did not abuse its discretion in dismissing the complaint, and affirm the Appellate Division order so holding.

On July 26, 1995, plaintiff commenced a damages action for personal injuries arising out of a one-car accident six months earlier. Alleging that she was a passenger in a Honda that skidded off a Nassau County roadway in the Town of Oyster Bay, plaintiff sued the driver, Karl G. Pfeffer, as well as Honda, the County and the Town. As against Honda she claimed negligence, breach of express and implied warranties, strict products liability and failure to warn in connection with the automobile and its component parts, including the seat belts. Honda responded with a general denial, cross-claims and a host of discovery requests, including demands for expert witness disclosure, collateral source information, no-fault authorizations, medical information and certain records.

On March 18, 1996, the parties convened before the court for a preliminary conference, resulting in an extensive Preliminary Conference Order fixing specific dates for discovery, to be completed within six months. The order was consented to by each party and signed by the Trial Judge. Most pertinently, the order required plaintiff to respond to Honda's interrogatories "within 30 days following receipt of same." That very day Honda served plaintiff with its "First Set of Interrogatories" — 34 pages, 92 questions. Having had no response, on September 13, 1996 — roughly five months beyond the response date fixed by the Preliminary Conference Order — Honda moved to strike the complaint and dismiss plaintiff's claims against it, or to compel responses within ten days. Honda alleged that without specificity as to the claimed defect in the automobile it could not adequately prepare its defense. Plaintiff's counsel submitted an affidavit opposing the motion, and that same day — December 10, 1996 — served its responses to Honda's interrogatories.

Honda, however, persisted in seeking dismissal of the complaint, portraying plaintiff's responses as "woefully inadequate and totally unresponsive in clear violation of the Court's Order." In particular, Honda claimed that responses 43 through 56 offered no clue as to the claimed defect in the car. Interrogatory 43, for example, seeking specificity as to the purported design defect, was answered "Defective design: Plaintiff alleges a defective design in the automobile, seatbelt and the seatbelt mechanisms and reserve their right to supplement this response prior to trial." Nearly identical responses followed with respect to the request for specificity as to failure to warn (Interrogatory 44), failure to inspect (Interrogatory 45), improper marketing and advertising (Interrogatory 46) and the defect that exacerbated plaintiff's injuries (Interrogatory 47).

By order dated March 31, 1997, the Trial Judge granted Honda's motion to dismiss the complaint for failure to comply with the Preliminary Conference Order unless plaintiff served further answers to interrogatories 43 through 56 within 20 days after service of a copy of the order on plaintiff's counsel. The court held that plaintiff's answers were "not responsive, lack any reasonable detail and improperly reserve the right to provide answers at a later time."

Honda's Order with Notice of Entry, indicating service by mail on all other parties at their correct addresses, is dated June 6, 1997, and stamped "Filed" by the Nassau County Clerk on June 16, 1997. The Jurat on Honda's Affidavit of Service, however, reads "Sworn to before me this 6th day of April, 1997." During the month of June 1997, counsel for Honda twice wrote to plaintiff's counsel referencing the Trial Judge's order, the first letter beginning: "As you are now undoubtedly aware, Judge Kutner has ordered that plaintiff supplement [her] discovery responses." Nevertheless, plaintiff's counsel claimed the March 31, 1997 order was not actually served, as represented, on June 6, 1997. Plaintiff made no further responses to Honda's interrogatories within 20 days after June 6, 1997.

On July 23, 1997, plaintiff belatedly served additional responses to Honda's interrogatories. Honda asserts that plaintiff's responses are still inadequate.

On October 20, 1997, the Trial Judge issued an order reserving decision on Honda's motion to strike the complaint until it received an explanation of when Honda served the court's March 31, 1997 order. Plaintiff's counsel, who was on vacation during the entire month of June, then submitted two affidavits — one from his partner who reviewed his mail during June, the second from his secretary who opened his mail — asserting that they did not see the March 31, 1997 order in the June mail. Honda responded with two affidavits of its own, the first from the secretary who mailed the Order with Notice of Entry and prepared the Affidavit of Service, attesting that "April" was her typographical error; the second affidavit — to the same effect — was from the Notary Public who signed the Jurat.

On February 9, 1998, the Trial Judge granted Honda's motion to strike the complaint, noting that the court found Honda's explanation for the discrepancy in dates on the Affidavit of Service reasonable. The Appellate Division affirmed, with two Justices dissenting on the ground that a hearing was required to resolve the question of fact regarding service of the March 31, 1997 order. The double dissent on an issue of law brought the case to this Court (CPLR 5601[a]).

Three familiar propositions of law resolve this appeal in Honda's favor. First, service of papers on an attorney is complete upon mailing (CPLR 2103[b] [2]). Second, a properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption (Engel v. Lichterman, 62 N.Y.2d 943, 944-945). Here, the denials of receipt by persons who reviewed plaintiff's lawyer's June mail were insufficient to create an issue of fact requiring a hearing. Third, when 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 the complaint (Zletz v. Wetanson, 67 N.Y.2d 711, 713).

Regrettably, it is not only the law but also the scenario that is all too familiar (see, e.g., Tewari v. Tsoutsouras, 75 N.Y.2d 1, 10-11; Reynolds Sec., Inc. v. Underwriters Bank Trust Co., 44 N.Y.2d 568, 571-572; Laverne v. Incorporated Vil. of Laurel Hollow, 18 N.Y.2d 635, 637, appeal dismissed 386 U.S. 682). 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. Indeed, the Legislature, recognizing the need for courts to be able to command compliance with their disclosure directives, has specifically provided that a "court may make such orders * * * as are just," including dismissal of an action (CPLR 3126). Finally, we underscore that compliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests meaningfully.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

* * * * * * * * * * * * * * * *

Order affirmed, with costs. Opinion by Chief Judge Kaye. Judges Bellacosa, Smith, Levine, Ciparick, Wesley and Rosenblatt concur.


Summaries of

Kihl v. Pfeffer

Court of Appeals of the State of New York
Nov 30, 1999
94 N.Y.2d 118 (N.Y. 1999)

affirming trial court's striking of complaint where plaintiff failed to correct initial interrogatory responses that were "not responsive" and "lack[ed] any reasonable detail"

Summary of this case from BS Kings Cnty. Med., P.C. v. State Farm Mut. Auto Ins. Co.

affirming trial court's striking of complaint under CPLR 3126 where plaintiff failed to respond to interrogatories within court-ordered time frames

Summary of this case from People's Capital & Leasing Corp. v. Color-Web, Inc.

affirming dismissal of complaint for failure to respond to interrogatories within the timeframe set by the court's preliminary conference order

Summary of this case from 23KT Gold Collectibles v. Daily News

affirming dismissal of complaint for plaintiff's failure to respond to interrogatories within court-ordered time frames

Summary of this case from Day v. Zwirn

In Kihl v. Pfeffer (94 NY2d 118, 123), we affirmed the dismissal of a complaint for failure to respond to interrogatories within court-ordered time frames, observing that "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity."

Summary of this case from Brill v. City of New York

ignoring court orders for disclosure

Summary of this case from Herman v. Pound W. Trading Corp.

ignoring court orders for disclosure

Summary of this case from A&F Hamilton Heights Cluster, Inc. v. Urban Green Mgmt., Inc.

In Kihl, the plaintiff's complaint was stricken for flouting two court orders to answer interrogatories concerning the alleged design defect for approximately a year and three months; the plaintiff had served an interrogatory response that was not meaningful.

Summary of this case from Herman v. Herman

In Kihl v Pfeffer, 94 NY2d 118, 123 (1999), the Court of Appeals affirmed the dismissal of a complaint for failure to respond to interrogatories within court-ordered time frames, stating that "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity."

Summary of this case from Epstein v. John Wiley Sons, Inc.

In Kihl v. Pfeffer, 94 N.Y.2d 118, 123, 722 N.E.2d 55, 700 N.Y.S.2d 87 (1999), the Court of Appeals cautioned "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity."

Summary of this case from Dziegielewski v. Advanced Integrative Wellness, LLC

In Kihl v. Pfeffer, 94 N.Y.2d 118, 700 N.Y.S.2d 87, (1999), the Court, while hearing an appeal on a disclosure motion, took the appeal as an occasion to "put the writing on the wall", with the desire that it would be read not only by the litigants, but by the lower courts as well, hopefully generating a less indulgent attitude about a party's recalcitrance in disclosure proceedings in the future.

Summary of this case from Chawki v. General Motors, Inc.
Case details for

Kihl v. Pfeffer

Case Details

Full title:MERRYL KIHL, Appellant, v. KARL O. PFEFFER, et al., Defendants, HONDA…

Court:Court of Appeals of the State of New York

Date published: Nov 30, 1999

Citations

94 N.Y.2d 118 (N.Y. 1999)
700 N.Y.S.2d 87
722 N.E.2d 55

Citing Cases

Arpino v. F.J.F. & Sons Elec. Co.

We disagree with the Supreme Court's conclusion, and modify accordingly. As the Court of Appeals has noted,…

150 Centreville, LLC v. Lin Assocs. Architects, PC

It appears that plaintiffs have failed to comply with defendants' discovery demands in accordance with the…