Audiovox Corp. v. Benyamini
| Decision Date | 17 April 2000 |
| Citation | 707 N.Y.S.2d 137,265 A.D.2d 135 |
| Parties | AUDIOVOX CORPORATION, Respondent,<BR>v.<BR>BENYAMIN BENYAMINI, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Alan D. Levine, Kew Gardens, for appellant.
Shalov Stone & Bonner, New York City (Lee S. Shalov of counsel), for respondent.
O'BRIEN, J. P., SULLIVAN, GOLDSTEIN and LUCIANO, JJ., concur.
On this appeal we are called upon to determine to what extent a litigant is entitled to discovery after a note of issue has been filed and to clarify the applicable standards for obtaining such discovery (see, 22 NYCRR 202.21 [d], [e]).
On or about July 30, 1995, the plaintiff commenced this action to enforce a personal guarantee allegedly executed by the defendant on behalf of a company called Beta Sound of Music (hereinafter Beta). Issue was joined on September 7, 1995. On June 18, 1996, the Supreme Court issued a preliminary conference order pursuant to which the defendant agreed to provide certain discovery, including handwriting exemplars. The defendant failed to comply with the order, and at a conference on December 12, 1997, he was again directed to provide the discovery.
On January 12, 1998, the Supreme Court issued an order certifying that the case was ready for trial. The order directed the plaintiff to serve and file a note of issue within 90 days. On February 3, 1998, the plaintiff complied with the court's directive and filed a note of issue and certificate of readiness. The certificate of readiness noted that all discovery was complete, except for the discovery that the defendant was previously directed to produce, which was the subject of a motion to compel pending before the court. There is no dispute that the defendant was served with the note of issue on or before the date it was filed. By order dated February 3, 1998, the same day the note of issue was filed, the court granted the plaintiff's motion to compel and directed the defendant to produce the documents set forth in the preliminary conference order within 20 days after service of a copy of the order dated February 3, 1998, upon the defendant's counsel. The court also warned that "further failures to comply with the court's orders will be deemed wilful and may result in dismissal."
On or about February 11, 1998, the plaintiff served the order dated February 3, 1998, upon the defendant. The defendant's attorney responded by letter dated March 12, 1998, stating, inter alia, that, other than his personal financial statement, the defendant had no other documents responsive to the plaintiff's demands. The defendant also served a notice for discovery and inspection upon the plaintiff seeking four separate categories of documents, including the "complete credit file" maintained by the plaintiff for the Beta account and the names and addresses of all employees involved with the Beta account.
In reply, the plaintiff's attorney, by letter dated March 16, 1998, objected to the form and content of the defendant's March 12, 1998, "response" to the outstanding discovery demands. The plaintiff's attorney asserted that if certain documents did not exist, the defendant needed to provide a detailed affidavit explaining why "each such document was never made or was destroyed." Further, the plaintiff's attorney rejected the notice of discovery and inspection as untimely and requested written confirmation that it would be withdrawn.
After the plaintiff's attorney attempted to contact the defendant's attorney by telephone and received no response, he moved by order to show cause, inter alia, pursuant to CPLR 3103, to strike the notice of discovery and inspection. In his affirmation in support of the motion, the plaintiff's attorney asserted that the notice for discovery and inspection was improper because it was served after the note of issue had been filed. He also claimed that the defendant had ignored the court's repeated orders to provide discovery or to provide a detailed affidavit explaining the nonexistence of the requested documents.
The defendant's attorney submitted an affirmation in opposition and asserted that the notice for discovery and inspection was proper because at a conference before the court on December 19, 1997, he indicated that he was conducting an "investigation" regarding inconsistencies between the deposition testimony of the plaintiff's president and the plaintiff's credit files. Therefore, the defendant's attorney argued, further discovery was contemplated by the parties. The defendant's attorney further stated that his investigation had uncovered information from a former employee of the plaintiff which "strongly indicated" that the deposition testimony of the plaintiff's president was incomplete and possibly false. Accordingly, the documents requested from the plaintiff were "absolutely essential" to the defense of the action.
By order entered July 6, 1998, the Supreme Court, inter alia, granted that branch of the plaintiff's motion which was to strike the defendant's notice of discovery and inspection.
After the filing of a note of issue, there are two separate and distinct methods to obtain further disclosure. The first, pursuant to the Uniform Rules for Trial Courts (hereinafter the Uniform Rules) (22 NYCRR) § 202.21 (d), provides, in pertinent part: "Where unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice, the court, upon motion supported by affidavit, may grant permission to conduct such necessary proceedings." The second, pursuant to 22 NYCRR 202.21(e), provides, in pertinent part: "[w]ithin 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect."
Obviously, the more difficult standard is that provided by 22 NYCRR 202.21 (d) because it requires the movant to demonstrate unusual or unanticipated circumstances and substantial prejudice, whereas a timely motion to vacate the note of issue pursuant to 22 NYCRR 202.21 (e) need only demonstrate in what respects the case is not ready for trial. Another important distinction is that under 22 NYCRR 202.21 (e) the court may vacate the note of issue, while under subsection (d) the court does not have that discretion. In prior decisions, this Court has held that the "unusual or unanticipated circumstances" standard is not met where the defendant seeks a further physical examination of the plaintiff because the defendant is merely dissatisfied with the original doctor's diagnosis (see, Frangella v Sussman, 254 AD2d 391, 392), where the movant has failed to demonstrate substantial prejudice if the additional discovery is not allowed (see, Futersak v Brinen, 265 AD2d 452; Ellis v Brookdale Hosp. Med. Ctr., 133 AD2d 806, 807), or where the movant has failed to allege that the plaintiff suffered new or additional injuries or that the nature and extent of the plaintiff's existing injuries changed...
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