Beauregard v. Millwood-Beauregard

• Decision Date: 25 August 1994
• Docket Number: MILLWOOD-BEAUREGAR,R
• Citation: 615 N.Y.S.2d 938,207 A.D.2d 633
• Parties: In the Matter of Paul BEAUREGARD, Appellant, v. Machelleespondent.
• Court: New York Supreme Court — Appellate Division

Page 938

615 N.Y.S.2d 938

207 A.D.2d 633

In the Matter of Paul BEAUREGARD, Appellant, v. Machelle MILLWOOD-BEAUREGARD, Respondent.

Supreme Court, Appellate Division Third Department.

Aug. 25, 1994.

Richard P. Ruswick, Ithaca, for appellant.

Diane B. Withiam, Ithaca, for respondent.

Before CARDONA, P.J., and MERCURE, CASEY, YESAWICH and PETERS, JJ.

CASEY, Justice.

Appeal from an order of the Family Court of Tompkins County (Barrett, J.), entered March 2, 1993, which, inter alia, dismissed petitioner's application, in a proceeding pursuant to Family Court Act article 6, for modification of custody.

We conclude that the ultimate sanction of dismissal is an inappropriate penalty to impose upon petitioner for his counsel's delay of approximately 30 days in responding to respondent's interrogatories and a demand to produce (see, Zletz v. Wetanson, 67 N.Y.2d 711, 713-714, 499 N.Y.S.2d 933, 490 N.E.2d 852). "In the absence of conduct 'so blatantly contumacious as to require the ultimate penalty' * * * the drastic sanction of dismissal is not warranted * * * " (Farrell v. New York State Elec. & Gas Corp., 120 A.D.2d 778, 779, 501 N.Y.S.2d 235, quoting Spancrete Northeast v. Travelers Indem. Co., 99 A.D.2d 623, 624, 472 N.Y.S.2d 177 [citations omitted]. Without a showing "of a deliberately evasive, misleading and uncooperative course of conduct or a determined strategy of delay that would be deserving of the most vehement condemnation", the record will not support an order of dismissal (Forman v. Jamesway Corp., 175 A.D.2d 514, 515, 572 N.Y.S.2d 782), particularly in a child custody matter where the child's best interest is at stake.

It is our view that although counsel's failure to respond until after respondent had moved to dismiss is inexcusable, the delay was relatively brief and there is nothing in the record to suggest the type of evasive, misleading and uncooperative course of conduct or strategy of delay that would justify the drastic penalty of dismissal, particularly where, as here, the delay is attributable to petitioner's counsel rather than to petitioner (see, Lowitt v. Korelitz, 152 A.D.2d 506, 507-508, 544 N.Y.S.2d 14). We conclude that a monetary penalty in the amount of $500, imposed on petitioner's counsel personally, is appropriate in the circumstances (see, Wolfson v. Calamel, 162 A.D.2d 959, 557 N.Y.S.2d 183; see also, Farrell v. New York State Elec. & Gas Corp., supra ).

Family Court also erred in concluding that petitioner had admitted the allegations of the document entitled an answer and amended counterpetition. Assuming that it is proper to include an amendment to a prior pleading in an answer to a different pleading, the amended pleading contained nothing material and relevant that had not already been pleaded in the original pleading, which petitioner answered. The order should be reversed and the matter remitted to Family Court for a resolution on the merits.

CARDONA, P.J., and MERCURE and YESAWICH, JJ., concur.

PETERS, Justice (dissenting).

I respectfully dissent.

With scores of litigants desperate for trial time in the Family Courts of our State, assertive calendar control by the trial bench is precisely the type of corrective action needed. When a trial date is imminent and oral reminders regarding outstanding discovery requests are provided to counsel, a dismissal of the action based upon a finding by Family Court of a willful failure to respond to interrogatories and demands to produce should be upheld.

Here, custody/visitation petitions were filed in September and October 1992. A conference before Family Court was held on November 30, 1992 where compliance with discovery was set for January 15, 1993 and a date certain for trial was scheduled for February 18, 1993. Respondent's counsel served interrogatories and a demand to produce upon counsel for petitioner by first class mail on December 24, 1992. Counsel for petitioner never objected to the form or content of such demands and neither moved for a protective order nor responded prior to the eve of trial. Counsel was reminded of his failure to respond by letter dated January 15, 1993 from respondent's counsel. When petitioner's counsel failed to respond to such letter, counsel for respondent again communicated with him on February 9, 1993 by telephone. Although respondent's counsel was promised responses within several days, none were forthcoming. A second telephone call was made by respondent's counsel on February 12, 1993 and again she was advised that responses would be forthcoming. Such responses were not received until the eve of trial in the late afternoon.

By motion dated February 16, 1993, counsel for respondent requested an order pursuant to CPLR 3126. Counsel also requested that Family Court declare petitioner in default for failure to serve an answer to the amended counterpetition. All issues were heard by the court on February 18, 1993, the date of trial, after which Family Court granted the relief requested by respondent.

It is well settled that "[e]ach party is entitled to expect the other to observe time requirements during the course of litigation, and both are equally subject to prejudice from failure to observe such requirements" (Eaton v. Equitable Life Assur. Socy. of U.S., 56 N.Y.2d 900, 903, 453 N.Y.S.2d 404, 438 N.E.2d 1119). A determination as to whether the failure to abide by a discovery schedule is excusable is one quite appropriately left to the discretion of the trial court (see, Zletz v. Wetanson, 67 N.Y.2d 711, 499 N.Y.S.2d 933, 490 N.E.2d 852; Walk & Smile v. 2491 Atlantic Ave. Corp., 150 A.D.2d 366, 540 N.Y.S.2d 541). Petitioner contends both here and at the trial level that his failure to respond was due to a lost file or more appropriately termed "law office failure". Respondent contends, through her attorney's affirmation, that such excuse was never raised prior to the institution of court proceedings and that had she been advised of the lost file, ...