Derezeas v. New York Rd. Runners, Inc.

• Decision Date: 07 May 2012
• Docket Number: Index No. 115009/2009
• Citation: 2012 NY Slip Op 31201
• Parties: ANTONIA DEREZEAS, Plaintiff, v. NEW YORK ROAD RUNNERS, INC. and JEFF TURLIP, Defendants.
• Court: New York Supreme Court

2012 NY Slip Op 31201

ANTONIA DEREZEAS, Plaintiff, v. NEW YORK ROAD RUNNERS, INC. and JEFF TURLIP, Defendants.

Index No. 115009/2009

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 2

Dated: April 3, 2012

DATED: May 7, 2012

LOUIS B. YORK, J.:

Currently, plaintiff moves for an order (1) extending the time in which to file the Note of Issue, (2) directing three depositions, and (3) consolidating this action with another, new action. For the reasons below, the Court denies the motion.

I. Request to Extend Deadline for Discovery

The summons and complaint in this personal injury "action were filed on October 26, 2009, and the request for judicial intervention was filed over 2 years ago, on March 24, 2010. The parties appeared for a preliminary conference setting up a timetable for discovery on June 6, 2010. The resulting court order scheduled deposition dates of September 14 and 15, 2010, included an impleader deadline of November 15, 2010, and directed that discovery be completed by January 14, 2011 and the Note of Issue be filed by January 24, 2011. The impleader deadline, of August 19, 2011, was a firm date. After that date, no impleader was permissible except by motion.

This Part's preliminary conference order, paragraph 7, sets forth the Part's directive to the parties regarding discovery issues. This provision states that as soon as a disclosure problemarises and before the end date for discovery, one or more of the parties is required to call the part and arrange a telephone conference. The order stresses that the failure to comply with this procedure waives all pending and future discovery absent a showing of good cause for the failure. The court requires the parties to write in the requirement to make sure that they pay attention to it. In addition, under the order depositions may not be adjourned without the court's prior approval; and the additional directives page reiterates this rule in harsh language, threatening sanctions, the waiver of discovery, or both, to any parties who do not obtain this approval in a timely fashion.

Initially, following these directives, plaintiff contacted the Court for a phone conference when, in September 2010, she realized the parties could not complete the depositions pursuant to the original schedule. In the ensuing phone conference, the Court scheduled new deposition dates of October 28 and 29, 2010. Through a subsequent phone conference, on November 10, 2010, the parties again rescheduled depositions, this time for December 6, 2010. The end date for discovery of January 14, 2011 and the note of issue deadline of January 21, 2011 remained in effect.

It was at this point that the parties' conduct became problematic. Plaintiff called with additional discovery problems on December 17, 2010, after the deposition dates. At this point, as the telephone conferences had been of no avail, the Court scheduled an in person conference on January 12, 2011. Unfortunately on January 12 and the next adjourn date of February 2,

2011, the conference could not be held because of snowstorms. However, there is no explanation on the Court's case card as to why the parties adjourned the conference on March 9, and again on April 27.

Next, plaintiff attempted to amend the complaint in March, two months after the discovery and note of issue deadlines had expired. The Court denied the motion partly for this reason. Also, the Court denied the motion due to the conclusory statements made in the motion papers, and lack of information about the proposed amendment and the lack of evidentiary support.

The April 27 adjournment was marked as the final permissible adjournment. Therefore, when the parties again sought an adjournment - until May 11, 2011 - the matter, which was on the pre-Note calendar beyond the standards and goals and well past all deadlines for discovery, was scheduled for a status conference, which this Court holds in cases in which the parties are delinquent and in default of the terms of the Court's discovery orders. The parties continued to argue for and obtain adjournments - to June 13, September 14, October 26, and finally December 7, 2011 - apparently due to an alleged motion to consolidate this matter - which plaintiff ultimately made - with another action, against Jeff Turlip.¹ At the status conference on December 7, 2011 - a year after plaintiff's initial call requesting the conference - the Court set a final Note of Issue deadline of March 6, 2012.

Rather than adhere to the status conference order and the guidelines set forth above for seeking extensions, on March 6, 2012 - as stated, the last possible day to file the Note of Issue -plaintiff prepared this motion. She served it on March 7, 2012, after the Note of Issue deadline had passed. The papers do not reference any of the conferences, adjournments, the Court's rules or plaintiff's reasons for deviating from these rules. There is no indication - in the court computer, on the case card kept by the Part, or in the motion papers - that movant contacted the Court regarding any discovery problems or applications to extend prior to making this motion.Moreover, the motion does not explain whether good cause existed justifying the failure to comply. Thus, under the terms of the preliminary conference order, the parties have waived the right to seek court assistance with the discovery process. This is especially true here, in light of the history of delay, adjournments and other problems.

Moreover, the Court notes, the papers do not set forth any valid reason for obtaining additional time. Instead, it appears that all parties have been deposed and all discovery has been exchanged. The only reason to seek an extension is to obtain discovery against nonparties whom plaintiff seeks to add to this action but who were not served with the motion. For this reason too the Court denies the motion. The Court further notes that these deficiencies are strikingly similar to those which caused the Court to deny plaintiff's March 2011 motion to amend the complaint. This is yet another reason for denial. Accordingly, plaintiff must file the note of issue on or before May 25, 2012 or the case shall be dismissed.

II. Depositions of the three coaches and other discovery

To the extent that plaintiff seeks additional discovery of the three coaches," this also is denied. Under NYCRR 202.7, an affirmation of good faith must accompany all discovery motions. Moreover, subsection (c) provides that this affirmation must "indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held." In the absence of a good faith affirmation, the court must deny the motion. See Fulton v. Allstate Ins. Co., 14 A.D3d 380, 382, 788 N.Y.S.2d 349, 351 (1st Dept. 2005). Here, plaintiff has not annexed any affirmation regarding her good faith efforts. Therefore, denial of the motion is mandated.

If the above were...