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

• Citation: 102 A.D.3d 201,2012 N.Y. Slip Op. 08271,959 N.Y.S.2d 74
• Parties: Dominic ARPINO, appellant, v. F.J.F. & SONS ELECTRIC CO., INC., et al., respondents.
• Decision Date: 05 December 2012
• Court: New York Supreme Court Appellate Division

102 A.D.3d 201
959 N.Y.S.2d 74
2012 N.Y. Slip Op. 08271

Dominic ARPINO, appellant,
v.
F.J.F. & SONS ELECTRIC CO., INC., et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 5, 2012.

[959 N.Y.S.2d 75]

Pugatch & Nikolis, Garden City, N.Y. (Phillip P. Nikolis and Gary E. Rosenberg of counsel), for appellant.

[959 N.Y.S.2d 76]

Bello & Larkin (Mauro Lilling Naparty, LLP, Great Neck, N.Y. [Matthew W. Naparty and Timothy O'Shaughnessy], of counsel), for respondents.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

AUSTIN, J.

[102 A.D.3d 202]The question presented on this appeal is what sanction, if any, is appropriate under CPLR 3126 when a party, in response to a court's discovery order, provides belated, false, incomplete, or misleading information as to material issues before attempting to supplement its discovery responses after the filing of the note of issue.

[102 A.D.3d 203]On the afternoon of June 25, 2008, the plaintiff Dominic Arpino was driving his motorcycle on Sunrise Highway in Babylon when he collided with a Ford Explorer owned by the defendant F.J.F. & Sons Electric Co., Inc. (hereinafter FJF), and driven by the defendant Thomas Foronjy. Although there was a passenger in the FJF vehicle who witnessed the accident, only the identities of the two drivers, the plaintiff and Foronjy, were referenced in the police accident report.

The plaintiff subsequently commenced this action against Foronjy and FJF in July 2008 to recover damages for his personal injuries allegedly caused by the defendants' negligence. Issue was joined on August 20, 2008.

Less than three months later, on November 6, 2008, the plaintiff served upon the defendants his combined discovery demands. Among other things, the plaintiff's combined discovery demands sought information concerning any witnesses to the accident. The plaintiff's demand instructed the defendants that “[i]f no such witnesses are known to any party represented by you, so state in the sworn reply to this demand. The undersigned will object upon the trial of this action to testimony of any witnesses not so identified.” The plaintiff's combined discovery demands also sought “[a]ny photographs, slides, videotapes or motion pictures ... of [a]ny instrumentality involved ... as may be relevant to the issues alleged in the pleadings, taken by or in the possession of any party you represent or in your possession as attorney(s).” Although a response to the plaintiff's combined discovery demands was due within 20 days of the date of service, it is undisputed that the defendants failed to serve any response at all within the 20–day period.

The plaintiffs' combined discovery demands were still outstanding when a preliminary conference was held on December 3, 2008. The preliminary conference stipulation and order (hereinafter the preliminary conference order), which was consented to and executed by counsel for the parties, required the parties to exchange witness information and photographs on or before January 12, 2009. The preliminary conference order further provided that if there were no witnesses or photographs, an affirmation to that effect was to be provided.

Although compliance with the preliminary conference order was due by January 12, 2009, no response was provided by the defendants by that date. Instead, in an attempt to comply with the preliminary conference order, a paralegal for the defendants' attorney, in violation of 22 NYCRR 130–1.1–a, represented, [102 A.D.3d 204]in a letter to the plaintiff's attorney dated January 23, 2009, that “[w]e do not have any photographs of the scene, injuries or vehicles involved” and “[w]e are not aware of eye/notice/admission witnesses other than those listed in public records and/or already exchanged between parties hereto.”

[959 N.Y.S.2d 77]

On May 15, 2009, the plaintiff conducted a deposition of Foronjy. During Foronjy's deposition, it was revealed for the first time, in contradiction to the January 23, 2009, letter of defense counsel's paralegal, that an FJF employee, Danny Heffron, was also in the FJF vehicle driven by Foronjy at the time of the accident. Foronjy testified that Heffron and he had just left a job site where FJF was performing electrical work on a commercial building and were on their way to Heffron's house when the accident occurred. Foronjy provided Heffron's address during the deposition.

Foronjy further revealed at his deposition that, in addition to Heffron, there may have been other witnesses to the accident. Foronjy identified one of the potential witnesses as a fellow FJF employee, “Brian Ester,” ¹ indicating that “Ester” pulled over on Sunrise Highway after the accident and told him that he had seen it. He added that “Ester” lived in Farmingdale, but he did not know “Ester's” home address. Foronjy also “guess[ed]” that “some people on the job site ... someone working on the roof or on the building,” may have been witnesses. When asked if anyone else told him that he or she witnessed the accident, Foronjy responded “no.”

After Foronjy's deposition, the plaintiff served a further notice for discovery and inspection dated May 22, 2009, which sought, among other things, photographs depicting post-incident damage to the defendants' vehicle. By letter dated June 9, 2009, the defendants' attorney responded that, “ [u]pon information and belief the Defendants are not currently in possession of any photographs depicting post-incident damage to Defendants' vehicle” (emphasis supplied).

A compliance conference was held on September 16, 2009. Counsel for the parties stipulated that disclosure was complete, and that the matter was ready for trial. The plaintiff was directed to file a note of issue on or before October 16, 2009. In accordance with the compliance conference stipulation, and in apparent reliance upon the defendants' denial of the existence [102 A.D.3d 205]of any other demanded discovery, the plaintiff filed the note of issue on September 30, 2009.

Despite the compliance conference stipulation and the filing of the note of issue nearly seven months earlier, the defendants served a “supplementary response to preliminary conference stipulation and order” dated April 7, 2010, in which they identified four witnesses: Dan Heffron, Brian “Evester,” Guy Graziano, and David Shapiro. The defendants did not provide the addresses of any of these witnesses.

About two weeks later, on or about April 20, 2010, the defendants served an expert witness disclosure giving notice of their intention to offer the opinion of Peter Scalia at the time of trial. Attached to the defendants' expert witness disclosure was Scalia's Accident Reconstruction Report (hereinafter the Scalia report), which was dated January 14, 2010, approximately three months before it was served. The opinion posited in the Scalia report, in large part, was based upon the witness statements of Heffron, “Evester,” Graziano, and Shapiro. All four witness statements were taken shortly after the accident between July and September 2008—proximate to the time this action was commenced and well before the service of the plaintiff's combined demand. In addition,

[959 N.Y.S.2d 78]

the Scalia report referenced and relied upon 18 photographs taken of the defendants' vehicle after the accident, as well as a “video run.”

Thereafter, on June 15, 2010, the defendants served a supplemental response to the plaintiff's November 6, 2008, combined discovery demands, in which they identified three of the witnesses, Heffron, Graziano, and Brian “Eyester,” together with their addresses ², and provided 18 photographs of the defendants' Ford Explorer. The 10 photographs were date-stamped July 10, 2008, which was 15 days after the accident, more than 5 months prior to the disavowal, by the paralegal for the defendants' counsel, of the existence of any such photographs and almost 1 year prior to defense counsel's denial of their existence “upon information and belief.” The defendants' supplemental response was served nearly 17 months after the service of the plaintiff's combined discovery demands and nearly 15 months after the deadline set for the defendants' response to the preliminary conference order that required disclosure of witness information and photographs.

[102 A.D.3d 206]By letter dated June 17, 2010, counsel for the plaintiff promptly rejected the defendants' supplemental response on the ground that it was “ untimely and in violation of all applicable Court rules controlling disclosure.” In the same letter, the plaintiff's counsel also rejected the defendants' expert disclosure on the basis that the defendants and their counsel “intentionally and willfully violated the rules of disclosure in an attempt to mislead and withhold information.” Counsel noted that, although the witnesses were coworkers of Foronjy and had given recorded statements with respect to the happening of the accident prior to Foronjy's deposition, these witnesses were not disclosed at the deposition by either Foronjy or defense counsel. With respect to the 18 photographs of the defendants' vehicle, the plaintiff's counsel pointed out that these photographs were taken less than one month after the accident occurred.

While the action was on the trial calendar, the plaintiff moved by order to show cause on August 11, 2010, for (1) a “default judgment” against the defendants on the issue of liability (this branch of the motion was, in effect, to strike the answer of the defendants), (2) to prohibit the defendants from offering any testimony on the issue of liability at trial, (3) to resolve all issues of liability against the defendants, (4) to preclude the defendants from introducing an accident reconstruction expert at trial, (5) to preclude the defendants from offering the testimony of “occurrence witnesses” at trial, and (6) to preclude the defendants from offering post-accident photographs of the...