75 A.D.3d 219, 2010-04465, Fish & Richardson, P.C. v. Schindler

Docket Nº2010-04465
Citation75 A.D.3d 219, 901 N.Y.S.2d 598
Opinion JudgeRICHTER, J.
Party NameFISH & RICHARDSON, P.C., Plaintiff-Respondent, v. Randy SCHINDLER, Defendant-Appellant.
AttorneyDanzig Fishman & Decea, White Plains (Donald S. Campbell, Donald G. Davis and Jenifer J. Liu of counsel), for appellant. [901 N.Y.S.2d 599] Brown & Whalen, P.C., New York (Rodney A. Brown and Ryan J. Whalen of counsel), for respondent.
Judge PanelPETER TOM, J.P., ANGELA M. MAZZARELLI, ROLANDO T. ACOSTA, LELAND G. DeGRASSE, ROSALYN H. RICHTER, JJ. All concur.
Case DateMay 25, 2010

Page 219

75 A.D.3d 219

901 N.Y.S.2d 598

FISH & RICHARDSON, P.C., Plaintiff-Respondent,

v.

Randy SCHINDLER, Defendant-Appellant.

2010-04465

Supreme Court of New York, First Department

May 25, 2010

Danzig Fishman & Decea, White Plains (Donald S. Campbell, Donald G. Davis and Jenifer J. Liu of counsel), for appellant.

[901 N.Y.S.2d 599] Brown & Whalen, P.C., New York (Rodney A. Brown and Ryan J. Whalen of counsel), for respondent.

PETER TOM, J.P., ANGELA M. MAZZARELLI, ROLANDO T. ACOSTA, LELAND G. DeGRASSE, ROSALYN H. RICHTER, JJ.

RICHTER, J.

This appeal brings up for review an order of Supreme Court that granted plaintiff's motion to strike defendant's answer for failing to comply with multiple court orders and discovery deadlines. CPLR 3126 provides that if a party " refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed ..., the court may make such orders ... as are just." A court may strike an answer as a sanction where the moving party establishes that the failure to comply was " willful, contumacious or in bad faith" ( Rodriguez v. United Bronx Parents, Inc., 70 A.D.3d 492, 492, 895 N.Y.S.2d 57 [2010] [internal quotation marks and citation omitted] ). Upon such showing, the burden " shifts to the nonmoving party to demonstrate a reasonable excuse" ( Reidel v. Ryder TRS, Inc., 13 A.D.3d 170, 171, 786 N.Y.S.2d 487 [2004] ).

" 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" ( Kihl v. Pfeffer, 94 N.Y.2d 118, 123, 700 N.Y.S.2d 87, 722 N.E.2d 55 [1999] ). Although actions should be resolved on the merits whenever possible, the efficient disposition of cases is not advanced by hindering the ability of the trial court to supervise the parties who appear before it and to ensure they comply with the court's directives ( see Arts4All, Ltd. v. Hancock, 54 A.D.3d 286, 287, 863 N.Y.S.2d 193 [2008], affd. 12 N.Y.3d 846, 881 N.Y.S.2d 390, 909 N.E.2d 83 [2009], cert. denied __ U.S. __, 130 S.Ct. 1301, __ L.Ed.2d __ [2010] ). Thus, a penalty imposed pursuant to CPLR 3126 should not be readily disturbed absent a clear abuse of discretion ( id. at 286, 863 N.Y.S.2d 193; see Sawh v. Bridges, 120 A.D.2d 74, 79, 507 N.Y.S.2d 632 [1986], appeal dismissed 69 N.Y.2d 852, 514 N.Y.S.2d 719, 507 N.E.2d 312 [1987] ).

Here, Supreme Court did not abuse its discretion in striking defendant's answer based on a pattern of disobeying court orders and failing to provide discovery. Defendant's flouting of his disclosure obligations began well before court involvement in this action. In August 2007, shortly after the complaint was filed, plaintiff served defendant with a request for documents, yet defendant failed to respond. At the preliminary conference held on December 20, 2007, the court issued an order directing defendant to answer that document request, and to produce certain insurance information, by January 16, 2008. Although defendant ultimately responded to the document demand, his response came two weeks after the deadline, and he never produced the insurance information. In a compliance conference order dated March 6, 2008, defendant was directed to respond to an interrogatory request and a second demand for documents by March 28 and April 11, 2008, respectively. Again, defendant ignored the court order and failed to provide any responses.

On May 8, 16 and 21, 2008, plaintiff's counsel sent e-mails to defendant's then-counsel, Lester Schwab Katz and Dwyer LLP (LSKD), requesting the...

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