Decided January 3, 2008.
Law Offices of Brad A. Kauffman, P.C., New York, NY, Plaintiff.
Michael A. Cardozo, Bronx NY, Defendant.
The plaintiff moves to strike the answer of the defendants for failing to comply with discovery obligations and with a conditional order of this court dated April 26, 2007.
Does plaintiff, by the filing of a Note of Issue, waive any prior failure by defendant to comply with a conditional order? Should plaintiff be precluded from making a motion to make "absolute" the striking of an answer because of the prior filing of a Note of Issue ?
The procedural history and background of this case is outlined in this court's decision and order issued on April 26, 2007; and the court hereby incorporates that history by reference.
In that decision, because of the defendants egregious delay and failure to comply with its discovery obligations, the court ordered the defendants to fully comply within 30 days, with all previous discovery demands and court orders, and to pay a monetary penalty to the plaintiff in the sum of $1000, or have its answer stricken. Despite service of the order with notice of entry on May 21, 2007, defendants did nothing. Upon expiration of 30 days from service of the order, the plaintiff filed a note of issue on June 25, 2007, and in a statement of readiness indicated in essence that no further discovery was necessary; and then expeditiously moved by motion dated July 27, 2007 (returnable August 22, 2007) to make absolute the conditional striking of the answer.
On August 20, 2007 [two days before the return date] the defendants, in an effort to avoid the consequences of the failure to comply with the order, forwarded the following items to plaintiff's counsel:
(1) a two page work order summary from the appropriate "lower dorm" encompassingMay 12, 2004 to November 12, 2004;
(2) the names and badge numbers of all correction officers assigned to the "lower dorm"from May 12, 2004 to November 12, 2004;
(3) an affidavit from Warden JoAndrea Davis who states (without providing anexplanation) that the inmate file and medical records for the plaintiff could not belocated; and
(4) an affidavit from Warden Gregory MacLaughlin who states that the logbook whichwould hold the names and identification information for all inmates housed in the"lower dorm" for the specified period of time was destroyed in a flood.
After several adjournments during which plaintiff and defendants provided supplemental responses and submissions, the motion was marked fully submitted on October 18, 2007. In one of the supplemental affidavits made by plaintiff's counsel in support of the motion, it was disclosed that not only had defendants failed to comply with the discovery mandates of the conditional order but also failed to pay the monetary penalty also ordered by the court to be paid within 30 days.
In opposition defendants state that they made good faith, albeit unsuccessful efforts to comply with the court's order; and that in any event they argue that by filing a note of issue with a statement of readiness, the plaintiff waived any defect in discovery responses and cannot thereafter move to have the answer stricken. In reply, plaintiff's counsel observes that he was already granted a conditional order striking the answer and therefore did not waive anything by the filing of the note of issue. He argues in addition that any perceived mistake in his note of issue should be allowed to be corrected pursuant to CPLR § 2001; or, if the filing of his note of issue is perceived to be an impediment to the defendants answer being stricken, he consents to having his note of issue stricken if the answer is deemed stricken as well.
DISCOVERY OBLIGATIONS — GENERALLY
All parties and their counsel have an obligation to make good faith efforts to fulfill their discovery and disclose obligations and to resolve all discovery and disclosure disputes, before seeking judicial intervention. Dilatory tactics, evasive conduct and/or a pattern of non-compliance with discovery and disclosure obligations may give rise to an inference of wilful and contumacious conduct, and may result in severe adverse consequences and sanctions [See, all cases cited infra]. "Among the particular types of conduct of a party that have warranted the imposition of sanctions for non-disclosure are: disobedience to a court order compelling disclosure; willful failure to appear for examination before trial; willful failure or refusal to produce witnesses for examination; willful or contumacious refusal to produce documents or materials demanded; failure to respond or to properly answer interrogatories; refusal to exchange or make available to the adverse party medical reports; refusal to give authorization for disclosure of medical reports where privilege waived; refusal to answer questions during deposition; ignoring a notice for discovery and inspection; removal or destruction of property sought to be produced and inspected; wilful failure to sign a deposition; falsely denying the possession of documents sought to be produced; refusal to agree to a mutually convenient date for examination; dilatory tactics, evasive conduct and willful obstruction of a discovery proceeding; and belated compliance with disclosure order or conditional preclusion order.
[44A NY Jur 2d Disclosure § 353].
"The court may also impose sanctions because of an attorney's conduct relating to disclosure such as failure to honor disclosure rules and stipulation between parties on disclosure, deliberate and contumacious delay between the commencement of the action and plaintiff's compliance with the court's discovery orders, or disruptive tactics during the deposition questioning of his client." [44A NY Jur.2d Disclosure § 353].
In addition, it should be noted, that attorneys and the parties have a professional and/or legal obligation to fully comply with all court orders, including those which relate to discovery and disclosure demands. Failure to comply with such orders will result in sanctions (both monetary and otherwise) which may among other things, severely affect the prosecution or defense of underlying lawsuit.
Sanctions, which have been suggested and upheld, by Appellate Courts, include (without limitation thereto) severe monetary sanctions as well as dismissal of a complaint or an answer. (See e.g., Figdor v. City of New York , 33 AD3d 560, 823 NYS2d.385 [1st Dept. 2006], [answer struck unless $10,000 sanction paid within 30 days]; Jones v. Green , 34 AD3d 260, 825 NYS2d 446 [1st Dept. 2006] [complaint dismissed because of plaintiff's long continued pattern of non-compliance]; Rampersad v. New York City, 10 Misc 3d 1059 A, 809 NYS2d 483, 2005 NY Slip Op 52023 (U) (Victor, J., 2005), aff'd, 30 AD3d 218, 817 NYS2d 20 [1st Dept. 2006] [answer struck for failure to comply with a conditional disclosure order]; Rojas v. City of New York , 27 AD3d 323, 813 NYS2d 64, [1st Dept. 2006]; affirming an order by Supreme Court Bronx County (Paul A. Victor, J), entered 9/2/05 [answer struck for failure to comply with a conditional disclosure order]; Anonymous v. High School for Environmental Studies , 32 AD3d 353 [1st Dept. 2006] ["defendants"s conduct warranted reimbursement of the time and expense incurred by the plaintiff's attorney in pursuing discovery". Court ordered payment of $7500]. In Figdor, supra, the First Department modified the order of the court below (which had denied plaintiff's motion) to the extent of directing that defendants' answer be stricken unless defendants' pay plaintiff's attorney $10,000. For emphasis, the Appellate Division also took the opportunity to instruct the IAS courts "to employ a more proactive approach in such circumstances upon learning that a party has repeatedly failed to comply with discovery orders." For added impact, that court emphasized that: "[The IAS courts] have an affirmative obligation to take such additional steps as are necessary to ensure future compliance." (emphasis added)
It must be noted from all of the above, that a pattern of non-compliance with court orders and/or discovery demands may result in a final and binding dismissal of an answer or a complaint. It should especially be noted by counsel for plaintiffs that the striking of a complaint may result, not only in the termination of the cause of the action, but also in the inability to revive same. ( Andrea v. Armone, 5 NY3d 514, 806 NYS2d 453.)In the Andrea case, the New York Court of Appeals held that dismissal of an action for failure to comply with a discovery order is a dismissal "for neglect to prosecute the action within the meaning of CPLR 205 (a); [and that], therefore, . . . actions filed after the dismissal of previous actions by the same plaintiffs, are not saved by CPLR 205 (a) from the bar of the statute of limitations." (emphasis added)
In theory an action should be ready for immediate trial assignment as soon as a note of issue with a statement of readiness (hereinafter the "Note") is filed. In some counties, theory is reality, and cases are sent to trial within days or weeks after the filing of the Note. In Bronx County, however, despite slow but steady progress over the last several years in reducing the backlog in the City part, there is still approximately a 30 month delay between the filing of the Note and the day the case is actually sent to trial. Moreover, until a Note is filed, that 30 month period does not even begin to run regardless of when the tort itself was alleged to have occurred. For example, in this case the alleged tort took place on November 12, 2004 but because of pre-trial procedures, (which were inordinately extended because of motion practice triggered by defendants' defaults and failure to provide discovery) plaintiff was prohibited from filing a Note of Issue until June 25 2007, i.e. the expiration date of the final period allowed to the defendant by the court's conditional order. It should be noted that conditional orders striking an answer are meant to be final and self-executing. They are not meant to provide the defendant with any additional time post default, and prior to trial, to provide discovery; nor are they meant to provide another round of motions which would further delay the filing of a Note. However, at trial, despite the prior issuance of a conditional order, plaintiffs are often surprised by a claim made by defendants that they did in fact timely comply with the conditional order, or that failure to comply was due to "excusable default", or that some fault on the part of plaintiff prevented compliance. When these issues are raised at trial, they usually require some form of hearing and a delay of the trial. Consequently, to avoid the risk of surprise and trial delay, some plaintiffs began seeking to have these issues clarified well before trial by making a motion to make "absolute" the dismissal of the defendant's answer for alleged failure to comply with the conditional order.
A motion to make absolute a prior conditional order striking an answer (whether made pre or post note of issue) is an approved, appropriate and recommended procedure and certainly should not be deemed to be a waiver of any rights. ( Rampersad v. New York City, 10 Misc 3d 1059 A, 809 NYS2d 483, 2005 NY Slip Op 52023 (U) (Victor, J., 2005), aff'd, 30 AD3d 218, 817 NYS2d 20 [1st Dept. 2006]. This pre-trial procedure provides certainty(without any added period of delay) and precludes defendants from attempting to claim at trial that there was compliance with the conditional order or that there was an excusable default. These issues are best addressed by the jurist that issued the conditional order rather than by a trial judge who would be unfamiliar with the prior history and circumstances and thus required to conduct an in limine hearing which would delay and interfere with the progress of the trial. It must be noted that this is not a case where there is an issue as to compliance, and where it can be said that "by the filing of a note of issue stating that disclosure was complete plaintiffs waived any defects in the defendant's response to [any outstanding] conditional order. . . ." (See, e.g. Escourse v. City of New York , 27 AD3d 319 [1st Dept. 2006]). In the case under consideration, there was no " outstanding conditional order". The order had fully matured without compliance by defendants, and thus plaintiff could correctly state in the note issue that, from his perspective, no further discovery was necessary and that plaintiff was ready for trial.This Court's decision in Kiernan v. City of New York, 5984/1995 NYLJ 4/18/2006 p. 19 col. 3, cited by the defendants does not compel a different result. There, this Court held (in a pre-trial motion) that a party may be excused from the effect of a conditional order if it can demonstrate either compliance with the conditional order, or an excusable default and meritorious defense. In that case, in response to a conditional order to strike its answer, the City had timely made available numerous boxes of discovery material but had been unable to provide a witness with actual knowledge to testify as to a road work project that had occurred 17 years before hand. Because of the City's efforts in timely making the documents available and its demonstrated attempts to produce a witness, defendant was given additional time to comply with the conditional order, i.e., the order was not violated.
If the defendants' argument herein were to be accepted defendants would in effect be rewarded for their past egregious delay by the allowance of another pre-note of issue period of delay. Because of the current backlog of trial ready cases in the City Part, it currently takes almost 30 months after the filing of a note of issue for a case to finally be sent for jury selection and trial. This delay already grossly exceeds the court's standards and goals; and any added delay imposed on this unreasonable period, should not be encouraged or condoned, and would be manifestly unjust. Here, plaintiff would be forced to wait for the decision on this motion and then wait for an additional period of 30 months after the filing of a new note of issue, for a tort allegedly committed in 2004. This would not be fair.
In any event, all of the defendants' discovery responses are concededly untimely and still in violation of the court's conditional order. They can best be categorized as being "too little, too late". Even if they had been timely provided, the affidavits supplied by the wardens are deficient in that, among other things, they do not provide essential and required details (e.g., they do not specify when the inmate logbook was supposedly destroyed in a flood and what efforts were made to preserve these records; no reasonable explanation is provided as to why the plaintiff's medical and inmate file cannot be located and what efforts were made to preserve these records; and no specification is provided as to who conducted the searches and the extent of each search that was undertaken in an attempt to find them.) In short, these affidavits are insufficient and unreliable. ( Lewis v. City of New York , 17 Misc 3d 559, 844 NYS2d 665 [Sup. Bx. 2007]).
As observed by counsel, plaintiff has been prejudiced by defendants' defaults. Since there is no other source for the information regarding the identity of those inmates, plaintiff has been deprived of a possible opportunity to prove notice. Had the records been preserved and made available plaintiff would have been able to investigate and determine if any other inmates had observed and reported the condition which gave rise to the plaintiff's fall. Moreover, since no dates, times and places have been provided as to the missing and destroyed records, plaintiff has been deprived of the opportunity to seek an appropriate sanction for spoliation. (See, Baglio v. St. John's Queens Hosp., 303 AD2d 341 [2nd Dept. 2003] ["It is well settled that when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading.]; emphasis added.)It is also observed that this Court's order of April 26, 2007 also ordered the defendants to pay a monetary penalty of $1000 to plaintiff's counsel within 30 days of the order or have their answer dismissed. Although the defendants' reply papers indicate that a request for payment has been "processed", no payment has yet been made. Standing alone, that failure to pay within the time set forth in the conditional order, warrants an order making a dismissal of the answer absolute.
The plaintiff's motion is granted, and the defendants' answer is stricken.
This constitutes the decision and order of the Court.