Edoo-Rajotte v. Kendall

• Decision Date: 06 December 2019
• Docket Number: Index 616906/2018
• Citation: 2019 NY Slip Op 34500 (U)
• Parties: MITSY EDOO-RAJOTTE,, Plaintiff(s), v. MELISSA KENDALL, Defendant(s).
• Court: New York Supreme Court

2019 NY Slip Op 34500(U)

MITSY EDOO-RAJOTTE,, Plaintiff(s), v. MELISSA KENDALL, Defendant(s).

Index No. 616906/2018

Supreme Court, Suffolk County

December 6, 2019

Unpublished opinion

ORIG. RETURN DATE: December 3, 2019

FINAL RETURN DATE: December 3, 2019

MOT SEQ. #: 002 MOT D

PLAINTIFFS ATTORNEY: GRUENBERG KELLY DELLA ESQS.

DEFENDANT'S ATTORNEY: CHEVEN, KEELY & HATZIS, ESQS.

PRESENT Hon. Sanford Neil Berland. A.J.S.C.

HON. SANFORD NEIL BERLAND, A.J.S.C.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion, by plaintiff, dated November 15, 2019, and supporting papers; and (2) Affirmation In Opposition by defendant dated November 26, 2019, and supporting papers it is

ORDERED that plaintiffs motion is granted to the extent that defendant is directed to appear for her deposition within 30 days of service of this order, failing which she shall be precluded from testifying at trial, pursuant to CPLR § 3126, without further order of the Court; and it is further

ORDERED that plaintiff shall serve a copy of this order with notice of entry upon defendant's counsel by certified mail return receipt requested, on or before December 12, 2019; and it is further

ORDERED that failure to serve a copy of this order shall be deemed a waiver by plaintiff of the relief sought; and it is further

ORDERED that the attorneys-of-record are directed to appear for a previously scheduled compliance conference before the undersigned at Courtroom 237, Part 6, One Court Street, Riverhead, New York, on January 7, 2020 at 9:30 a.m.

This is an action for personal injuries sustained by plaintiff in a motor vehicle accident that occurred on March 9, 2016, on Route 27 in Babylon, New York, when a motor vehicle owned and operated by the defendant struck the rear of plaintiff s vehicle. By decision and order dated January 24, 2019, the Court (Baisley, J.) granted plaintiffs motion for partial summary judgment in her favor on the issue of liability. Plaintiff now moves, pursuant to CPLR § 3126, for an order compelling defendant to appear for a court-ordered deposition on a date certain or, in the alternative, precluding defendant from offering any evidence at trial or in support or opposition to any motion.

Following the granting of partial summary judgment in plaintiffs favor, a preliminary conference was conducted in the action, and pursuant to the Preliminary Conference Stipulation and Order, dated February 20, 2019, depositions of both parties were scheduled for May 22, 2019. It appears that because the law firm representing the defendant did not have an attorney available on the originally-scheduled date, and at their request, the depositions of the parties were rescheduled for July 15, 2019. Although plaintiff appeared for her deposition and was deposed on July 15, 2019, defendant did not, because, according to her attorney, she was "unavailable." Defendant's deposition was rescheduled, for September 4, 2019, but she failed to appear on that date, as well, again because, according to counsel, she was "unavailable." Her deposition was rescheduled for October 18, 2019. In the interim, on September 10, 2019, a compliance conference was conducted in the action. Although at plaintiffs request, the conference was also treated as a pre-motion conference pursuant to the court's part rules, plaintiffs request for permission to file a CPLR § 3126 was not granted at that time. Subsequently, however, at a further conference conducted by the court of October 29, 2019, after the defendant had again failed to appear for deposition and defense counsel advised that his firm had been unable to contact the defendant to inform her of her scheduled deposition and was continuing its efforts to locate her, plaintiff was granted such permission. Plaintiff thereafter made the instant motion.

CPLR § 3126 authorizes the Court to sanction a party who "refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed." "The nature and degree of a penalty imposed pursuant to CPLR 3126 for failure to comply with discovery is within the trial court's discretion" (Briano v LKT Transp., 23 A.D.3d 421 [2d Dept 2005]). A failure to comply with discovery, particularly after a court order has been issued, may constitute the "dilatory and obstructive, and thus contumacious, conduct warranting the striking of their [pleading]" (Kutner v Feiden, Dweck & Sladkus, 223 A.D.2d 488, 489 [1st Dept. 1998]; see CDR Creances S.A. v Cohen, 104 A.D.3d 17 (1st Dept. 2012); Reidel v. Ryder TRS, Inc., 13 A.D.3d 170 [1st Dept. 2004]). Absent a showing that a "defendant's failure to comply with disclosure was the result of willful, contumacious and deliberate conduct," the plaintiffs are not entitled to the drastic remedy of striking a defendant's answer or precluding certain evidence at trial (Williams v Ryder TRS, Inc., 29 A.D.3d 784, 785 [2nd Dept. 2006]; see Pepsico, Inc. v Winterthur Intl. America Ins. Co., 24 A.D.3d 742 [2nd Dept. 2005]; 281 St. Nicholas Partners LLC v Peppers, Jr. 2015 WL 5366056 [Sup Ct, New York County 2015]).

Here, in opposition to the motion, defendant's counsel does not dispute plaintiffs counsel's recitation of the sequence of events surrounding - and the ongoing frustration of-plaintiffs efforts to conduct defendant's deposition. Instead, defendant's counsel avers that his offices have been fruitlessly attempting to contact the defendant since the preliminary conference on February 20, 2019. Counsel asserts that his office has sent the defendant numerous letters, called several telephone numbers for contained in its file, conducted a Clear Search and a Department of Motor Vehicles search and undertaken various internet searches, in an effort to contact their client, all to no avail. Defendant's counsel contends that because the defendant herself has been unaware of the scheduling of her deposition and of the requirement that she appear for it, her failure to appear for deposition cannot be deemed intentional or contumacious so as to warrant the severe remedy of preclusion that plaintiff is now requesting.^[1]

"The willful and contumacious character of a party's conduct may be inferred from the party's repeated failure to comply with court-ordered discovery over an extended period of time," (Watson v 518 Pennsylvania Housing...