Kihl v. Pfeffer
| Citation | 94 N.Y.2d 118,700 N.Y.S.2d 87,722 N.E.2d 55 |
| Parties | MERRYL KIHL, Appellant, v. KARL O. PFEFFER et al., Defendants, and HONDA MOTOR Co., INC., Respondent. |
| Decision Date | 30 November 1999 |
| Court | New York Court of Appeals Court of Appeals |
Gleason, Dunn, Walsh & O'Shea, Albany (Thomas F. Gleason and James E. Dering of counsel), for appellant. Lester Schwab Katz & Dwyer, L. L. P., New York City (Eric A. Portuguese and Steven B. Prystowsky of counsel), for respondent.
At issue is the dismissal of a complaint against defendant Honda Motor Co., Inc. for plaintiff's failure to respond to Honda's interrogatories within court-ordered time frames. We conclude that the trial court did not abuse its discretion in dismissing the complaint, and affirm the Appellate Division order so holding.
On July 26, 1995, plaintiff commenced a damages action for personal injuries arising out of a one-car accident six months earlier. Alleging that she was a passenger in a Honda that skidded off a Nassau County roadway in the Town of Oyster Bay, plaintiff sued the driver, Karl O. Pfeffer, as well as Honda, the County and the Town. As against Honda she claimed negligence, breach of express and implied warranties, strict products liability and failure to warn in connection with the automobile and its component parts, including the seat belts. Honda responded with a general denial, cross-claims and a host of discovery requests, including demands for expert witness disclosure, collateral source information, no-fault authorizations, medical information and certain records.
On March 18, 1996, the parties convened before the court for a preliminary conference, resulting in an extensive Preliminary Conference Order fixing specific dates for discovery, to be completed within six months. The order was consented to by each party and signed by the Trial Judge. Most pertinently, the order required plaintiff to respond to Honda's interrogatories "within 30 days following receipt of same." That very day Honda served plaintiff with its "First Set of Interrogatories"—34 pages, 92 questions. Having had no response, on September 13, 1996—roughly five months beyond the response date fixed by the Preliminary Conference Order—Honda moved to strike the complaint and dismiss plaintiff's claims against it, or to compel responses within 10 days. Honda alleged that without specificity as to the claimed defect in the automobile it could not adequately prepare its defense. Plaintiff's counsel submitted an affidavit opposing the motion, and that same day—December 10, 1996—served its responses to Honda's interrogatories.
Honda, however, persisted in seeking dismissal of the complaint, portraying plaintiff's responses as "woefully inadequate and totally unresponsive in clear violation of the Court's Order." In particular, Honda claimed that responses 43 through 56 offered no clue as to the claimed defect in the car. Interrogatory 43, for example, seeking specificity as to the purported design defect, was answered "Defective design: Plaintiff alleges a defective design in the automobile, seatbelt and the seatbelt mechanisms and reserve their right to supplement this response prior to trial." Nearly identical responses followed with respect to the request for specificity as to failure to warn (Interrogatory 44), failure to inspect (Interrogatory 45), improper marketing and advertising (Interrogatory 46) and the defect that exacerbated plaintiff's injuries (Interrogatory 47).
By order dated March 31, 1997, the Trial Judge granted Honda's motion to dismiss the complaint for failure to comply with the Preliminary Conference Order unless plaintiff served further answers to interrogatories 43 through 56 within 20 days after service of a copy of the order on plaintiff's counsel. The court held that plaintiff's answers were "not responsive, lack any reasonable detail and improperly reserve the right to provide answers at a later time."
Honda's Order with Notice of Entry, indicating service by mail on all other parties at their correct addresses, is dated June 6, 1997, and stamped "Filed" by the Nassau County Clerk on June 16, 1997. The Jurat on Honda's Affidavit of Service, however, reads "Sworn to before me this 6th day of April, 1997." During the month of June 1997, counsel for Honda twice wrote to plaintiff's counsel referencing the Trial Judge's order, the first letter beginning: "As you are now undoubtedly aware, Judge Kutner has ordered that plaintiff supplement [her] discovery...
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