Kimmel v. State

• Decision Date: 30 December 1999
• Docket Number: No. 1,1
• Citation: 700 N.Y.S.2d 634
• Parties: 1999 N.Y. Slip Op. 11,364 Betty L. KIMMEL and Douglas Kimmel, Plaintiffs-Respondents, v. STATE of New York, New York State Division of State Police, James W. McMahon, Individually and as Superintendent of New York State Police, David M. Luitweiler, Individually and as First Deputy Superintendent of New York State Police, Ronald K. Wall, Individually and as Sergeant of New York State Police, Linda Stevens-Wagner, Individually and as Station Sergeant of New York State Police, Defendants-Appellants, et al., Defendant. (Appeal)
• Court: New York Supreme Court — Appellate Division

Page 634

700 N.Y.S.2d 634

1999 N.Y. Slip Op. 11,364

Betty L. KIMMEL and Douglas Kimmel, Plaintiffs-Respondents, v. STATE of New York, New York State Division of State Police, James W. McMahon, Individually and as Superintendent of New York State Police, David M. Luitweiler, Individually and as First Deputy Superintendent of New York State Police, Ronald K. Wall, Individually and as Sergeant of New York State Police, Linda Stevens-Wagner, Individually and as Station Sergeant of New York State Police, Defendants-Appellants, et al., Defendant. (Appeal No. 1.)

Supreme Court, Appellate Division, Fourth Department, New York.

Dec. 30, 1999.

Mitchell J. Banas, Jr., Buffalo, for defendants-appellants State of New York, New York State Division of State Police, and James W. McMahon, individually and as Superintendent of New York State Police.

Eugene Welch, Rochester, for defendants-appellants David M. Luitweiler, individually and as First Deputy Superintendent of New York State Police, Ronald K. Wall, individually and as Sergeant of New York State Police, and Linda Stevens-Wagner, individually and as Station Sergeant of New York State Police.

Emmelyn Logan-Baldwin, Rochester,for plaintiffs-respondents.

PRESENT: GREEN, J.P., HAYES, SCUDDER and BALIO, JJ.

MEMORANDUM:

Plaintiffs commenced this action against the State of New York, its Division of State Police, and five State Police Officers, alleging that defendants subjected plaintiff Betty L. Kimmel, a former State Trooper, to various acts of sexual discrimination sexual harassment and retaliation culminating in an incident of assault. On a prior appeal, we held that various nonappealed orders of Supreme Court bound defendants to comply with plaintiffs' 58-item demand for discovery of documents, including State Police personnel records, and precluded defendants from relitigating the proper scope of document discovery and the applicability of Civil Rights Law § 50-a (Kimmel v. State of New York [appeal No. 1], 261 A.D.2d 843, 690 N.Y.S.2d 383 ). We noted "our strong disapproval of the obstructionist and delaying tactics carried out by defendants and tolerated by the court" (Kimmel v. State of New York, supra ). We further noted that the action had been commenced four years earlier but was still in the initial stages of discovery, and we urged the court to move the matter expeditiously. Accordingly, we directed defendants to comply with plaintiffs' discovery notice and the prior orders in the case.

Subsequently, by order entered July 27, 1999, Supreme Court directed that defendants comply with our May 7, 1999 order within 30 days by turning over " 'all documents identified in plaintiffs' original discovery request' "; that defendants be precluded " 'from again raising Civil Rights Law § 50-a as an obstacle to disclosure' "; and that their answers be struck and the case proceed against defendants by default in the event of their failure to comply with discovery (appeal No. 1). By order entered September 2, 1999, Supreme Court denied the motions of defendants to renew their opposition to the foregoing order (appeal No. 2). By order entered September 27, 1999, Supreme Court denied the motion of certain defendants for a protective order or, in the alternative, for an in camera inspection of documents by the court. Additionally, the court denied the motion to relieve certain defendants from the disclosure sanction (appeal No. 3). Subsequently, by order entered October 8, 1999, Supreme Court denied defendants' motion to vacate or stay the July 27 order; denied defendants' motion to resettle certain 1995 and 1997 orders of Supreme Court; and ordered a hearing on plaintiffs' motion for monetary sanctions (appeal No. 4). Defendants appeal from those four orders, contending that Supreme Court erred in entering a conditional order striking their answer, should have granted the motions to renew or to vacate the conditional order, and should have resettled the 1995 and 1997 orders.

The nature and degree of the penalty to be imposed on a CPLR 3126 motion lies within the sound discretion of the trial court and will be disturbed only if there has been an abuse or improvident exercise of discretion (see, Mohammed v. 919 Park Place Owners Corp., 245 A.D.2d 351, 352, 665 N.Y.S.2d 435; Herrera v. City of New York, 238 A.D.2d 475, 476, 656 N.Y.S.2d 647; Grabow v. Blue Eyes, Inc., 123 A.D.2d 155, 158, 509 N.Y.S.2d 535; Associated Mut. Ins. Co. v. Dyland Tavern, 105 A.D.2d 892, 893, 482 N.Y.S.2d 359). Since the inception of this action, defendants have completely resisted plaintiffs' requests for disclosure, repeatedly ignored and disobeyed court orders, and consistently thwarted or delayed disclosure by raising various objections and privileges. We reject the contention of certain individual defendants that they are not responsible for their own persistent failure to turn over documents in their own possession because such failure was attributable to the State Attorney General's Office, which was representing those defendants at the time. Since entry of our order directing defendants to comply with plaintiffs' discovery notice, defendants have continued to engage in such obstructionist and dilatory tactics. Further, despite our unequivocal mandate, defendants have...