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

• Decision Date: 06 February 2013
• Citation: 39 Misc.3d 513,963 N.Y.S.2d 819,2013 N.Y. Slip Op. 23038
• Parties: 150 CENTREVILLE, LLC, and DeMartino Building Company, Inc. v. LIN ASSOCIATES ARCHITECTS, PC and Emily Lin.
• Court: New York Supreme Court

39 Misc.3d 513

963 N.Y.S.2d 819

2013 N.Y. Slip Op. 23038

150 CENTREVILLE, LLC, and DeMartino Building Company, Inc.

v.LIN ASSOCIATES ARCHITECTS, PC and Emily Lin.

Supreme Court, Queens County, New York.

Feb. 6, 2013.

Sean Wright, P.C., by Sean Wright, Esq., Jackson Heights, for Plaintiff.

Zetlin & De Chiara, LLP, by Lori Samet Schwarz, Esq., New York, for Defendant.

MARTIN E. RITHOLTZ, J.

The questions involved in this action are whether there should be any consequences to plaintiffs who commenced a litigation, waged for several years, but failed to preserve and safeguard the documents necessary to provide responses to defendants during discovery, and what ramifications and/or sanctions should flow from the failure. This opinion also raises novel issues regarding the issuance of attorney's fees under Part 130 of the Rules of the Chief Administrator, governing the award of costs and the imposition of financial sanctions for frivolous conduct in civil litigation.

I. THE FACTS

The facts could be condensed as follows: in 2007, the plaintiffs 150 Centreville, LLC, and DeMartino Building Company, Inc., whose principal is Frank DeMartino (“DeMartino”) served and filed a summons and complaint against Lin Associates Architects PC and Emily Lin (collectively referred to as “Lin” or the “Lin Defendants”), alleging architectural malpractice and breach of contract.

A. The Complaint of October 23, 2007

According to the complaint, the contract between the parties was entered into during 2001 and the malpractice occurred at some point up to 2004, when the project agreed to was still incomplete. The complaint, dated October 23, 2007, over five years ago, alleged many design defects that resulted in both the rejection of the original plans to build a multi-building residential development and the loss of needed financing for the project. Significantly, the complaint sought an amount to be determined at trial, but no “less than $400,000.00, plus interest.”

B. The Preliminary Conference Order of April 22, 2009

Justice David Elliot signed a Preliminary Conference Order on April 22, 2009. Deadlines for discovery were set, including Examinations Before Trial to be held in August, 2009. A Compliance Conference before this Court was scheduled for September 8, 2009.

C. The Lin Defendants' Discovery Demands of June 15, 2009

On or about June 15, 2009, the Lin Defendants served a set of interrogatories accompanied by a notice for discovery and inspection of documents, including those referred to in the interrogatories. The interrogatories contained 23 relevant items of demanded information, often with subparts. The accompanying notice for discovery and inspection, also dated June 15, 2009, sought the documents, papers, and records that were to be identified in the expected answers to the aforementioned interrogatories. This discovery notice listed 27 categories of pertinent documents to be produced. Plaintiffs failed to furnish any answers to the interrogatories or supply any documents to the aforementioned discovery demands. To date, plaintiffs still have not furnished any answers or documents in this litigation that is over five years old.

At no time did the plaintiffs move for a protective order. They never complained that the interrogatories were inappropriate, harassing, vexatious, blunderbuss, or prolix, or that the notice for discovery and inspection sought documents that were irrelevant.

This Court's review of the exhibits and the document demands, in fact, confirms the reasonableness of scope of the set of interrogatories and document demands. The questions sought go to the heart of the plaintiffs' contentions regarding the alleged provisions of the contract, meetings with persons from the New York City Department of Buildings, the claims of architectural malpractice, and the alleged damages sustained by the plaintiffs.

D. The Court's Compliance Conference Order of September 8, 2009

In a Compliance Conference Order, dated September 8, 2009, this Court required the plaintiffs to supply answers to the aforementioned interrogatories and document demand within 30 days. The Court further required the plaintiffs to serve their note of issue and certificate of readiness by December 17, 2009. The plaintiffs violated said order, and failed to serve either answers to the defendants' set of interrogatories or records in response to the defendants' document demand.

E. This Court's Short Form Order of December 14, 2009

By short form order dated December 14, 2009, the defense motion to dismiss the complaint for failure to comply with discovery was granted without opposition. The Court's order stated:

It appears that plaintiffs have failed to comply with defendants' discovery demands in accordance with the Preliminary Conference Order, dated April 22, 2009 and the Compliance Conference Order, dated September 8, 2009.

Under the circumstances herein, plaintiffs' complaint against the defendants is dismissed pursuant to CPLR § 3126. ( See, Kihl v. Pfeffer, 94 N.Y.2d 118, 700 N.Y.S.2d 87, 722 N.E.2d 55 and 38 A.D.3d 238;Shapiro v. Kurtzman, 32 A.D.3d 508, 820 N.Y.S.2d 311).

Three days before the above-quoted Dec. 14, 2009, order was issued, DeMartino, the principal of the corporate plaintiffs, evidently concerned that the plaintiffs' case might be dismissed, wrote to the Court. He informed the Court, inter alia, that he had discharged his counsel, Bryan Ha, Esq., and that he “was finally done interviewing attorneys [as successor counsel to Mr. Ha] and at the same time compiling the necessary discovery ” [emphasis added].

Notwithstanding this letter, no one appeared on the plaintiffs' behalf on the return date of the defendants' motion to dismiss, of December 14, 2009, so the Court granted the motion without opposition. Significantly, despite DeMartino's representation to the Court that he was “at the same time compiling the necessary discovery,” made in his letter of Dec. 11, 2009, he did not furnish answers to the defendants' interrogatories or supply responsive papers to the defendants' document demand. He still persists, to date, in this failure.

F. This Court's Short Form Order of March 18, 2011

Plaintiffs' new counsel, Sean Wright, Esq. (“Wright”), on January 19, 2011, filed an order to show cause seeking to vacate the order of December 14, 2009. Although the plaintiffs' motion, by order to show cause, was made more than a year after the action's dismissal, this Court, in a four-page order dated March 18, 2011, vacated the prior order dismissing the complaint, provided that certain conditions were met.

The Court required that the set of interrogatories and document demand, both dated June 15, 2009, be answered no later than June 20, 2011, and that depositions follow thereafter. The order further stated:

[Since] defendants “... endured delays and [were] forced to seek judicial intervention to secure disclosure to which it was entitled ...”, the record supports a finding that failure to respond to defendants' discovery demands is equally attributable to both Mr. Ha, plaintiffs' former counsel, and plaintiffs themselves. ( See, Garan v. Don & Walt Sutton Builders, Inc., 27 A.D.3d 521, 813 N.Y.S.2d 123,citing Smith v. New York Tel. Co., 235 A.D.2d 529, 653 N.Y.S.2d 30). Mr. Ha bears responsibility by not informing the Court of the reasons for the delays and allowing successive orders to not be responded to. Whereas Mr. DeMartino knew as early as the summer of 2009 that he intended to change attorneys and failed to act on this until December 2010. Accordingly, plaintiffs' complaint is restored to pre-note status on the condition that Mr. Ha, plaintiffs' former counsel, and plaintiffs each pay the sum of $500.00 (for a total of $1,000.00) to the defendants within 30 days after service of a copy of this order along with notice of entry. In the event Mr. Ha refuses or fails to pay, then plaintiffs shall pay an additional $500.00 to defendants on Mr. Ha's behalf within 60 days. ( See, Garan, supra; and Hyde Park Motor Company, Inc. v. Sucato, 24 A.D.3d 724, 808 N.Y.S.2d 703).

Despite this Court's exercise of discretion in vacating the prior order of dismissal, thereby resuscitating this old litigation, the plaintiffs, did not furnish the answers to the defense set of interrogatories and supply the documents demanded in defendants' notice of discovery and inspection, dated June 15, 2009, by the court-ordered June 20, 2011 deadline date. Plaintiffs still have not supplied answers or documents, and have persisted in flaunting court orders.

G. The Court's So–Ordered Stipulation of October 6, 2011

The plaintiffs then complained, for the first time, that they could not supply any of the answers to any of the interrogatories because they lost their office or warehouse space, as a result of an illegal tenancy, where the documents allegedly were located. Without the documents, plaintiffs maintained that they could not supply answers to any of the interrogatories or furnish the demanded documents.

In light of the procedural history discussed above and the many opportunities afforded the plaintiffs, there was a sufficient basis to dismiss the complaint again, at this juncture.

Despite the vigorous opposition of the defendants who contended that the plaintiffs were frivolously stalling for time, the Court exercised forbearance and did not dismiss the complaint. Instead, the Court yielded to plaintiffs' counsel's pleas and gave his clients one more final opportunity to supply the discovery. Specifically, by so-ordered stipulation, dated October 6, 2011, following an extensive conference, the Court provided for the service of a judicial subpoena by the plaintiffs on their former landlord to obtain the necessary corporate records and books of account. Furthermore, the last decretal paragraph of said So–Ordered stipulation categorically stated:

Plaintiff[s] shall respond to defendant[s'] outstanding demands to defendant[s'] interrogatories and [notice...