Wilson v. Galicia Contracting & Restoration

• Decision Date: 29 April 2008
• Docket Number: No. 65.,65.
• Citation: Wilson v. Galicia Contracting & Restoration, 890 N.E.2d 179, 10 N.Y.3d 827 (N.Y. 2008)
• Parties: Lamont WILSON, Respondent, et al., Plaintiff, v. GALICIA CONTRACTING & RESTORATION CORP. et al., Defendants, and Safway Steel Products, Inc., Appellant.
• Court: New York Court of Appeals Court of Appeals

890 N.E.2d 179

10 N.Y.3d 827

Lamont WILSON, Respondent, et al., Plaintiff, v.GALICIA CONTRACTING & RESTORATION CORP. et al., Defendants, and Safway Steel Products, Inc., Appellant.

No. 65.

Court of Appeals of New York.

April 29, 2008.

Mauro Goldberg & Lilling LLP, Great Neck (Kenneth Mauro and Anthony F. DeStefano of counsel), and Ahmuty, Demers & McManus for appellant.

Pollack, Pollack, Isaac & DeCicco, LLP, New York City (Brian J. Isaac and Michael H. Zhu of counsel), and Law Firm of Allen L. Rothenberg (Marc J. Rothenberg of counsel) for respondent.

OPINION OF THE COURTMEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

On June 18, 1999, at about 7:30 P.M., 16-year-old plaintiffLamont Wilson allegedly was walking under scaffolding assembled by defendant Safway Steel Products when he saw the scaffolding shake and looked up, and a piece of material fell into his left eye.Plaintiff told hospital personnel that he thought that he had been struck by broken glass.Doctors surgically removed a small piece of metal that had imbedded in his eye and permanently damaged his retina.

On April 6, 2000, plaintiff filed suit against Safway and six other defendants, asserting various theories of liability.Over the ensuing months, Safway and certain other defendants failed to comply with plaintiff's formal and informal discovery demands, and with the terms of a preliminary conference order dated June 25, 2001.Ultimately, on plaintiff's application, the court issued a self-executing conditional order directing defendants to comply by July 1, 2002 or their answers would be stricken.

Having failed to comply, Safway's answer was stricken as of July 1, 2002.This left unrebutted plaintiff's assertion that the cause of plaintiff's injury was "a dangerous, defective and/or unsafe condition" existing on defendant's premises.In early August 2002, at the request of a codefendant, plaintiff produced the object that had been removed from his eye; that defendant's expert opined that the object appeared to be a lead air-gun pellet that was "fired into his eye by the power of an air gun."Plaintiff thereafter discontinued his claims against the other defendants with prejudice, and by order dated June 18, 2003, the court granted his motion for an inquest against Safway, denying Safway's motion to dismiss.

Over the next two years, Safway unsuccessfully moved three times to vacate the order striking its answer and the order granting the inquest.First, Safway attempted to show a "justifiable excuse" for its conduct.The Appellate Division affirmed denial of that motion, concluding that Safway failed to offer "any acceptable reason for its two-year long pattern of failure to respond to discovery demands, court orders, or the conditional order"(8 A.D.3d 560, 779 N.Y.S.2d 527).Next, Safway alleged that the underlying claim was fraudulent.The trial court determined that its decision to strike Safway's answer and allow plaintiff to proceed to an inquest was "wholly unrelated and in no manner the result of" alleged fraud but resulted solely from Safway's "own actions or inactions."Third, Safway claimed that the self-executing order was void ab initio due to a stay in another matter; the court denied that motion as well, finding the stay inapplicable.After the inquest and entry of judgment, the Appellate Division reduced the award but otherwise affirmed.We now affirm.

In our Court, Safway contends that CPLR 3215(f) renders the judgment a nullity.Safway — who was represented throughout by counsel, and offered no valid reason for ignoring the discovery demands and court orders — failed to raise this argument in its prior motions.^*As we have previously made clear, the requirement of preservation is not simply a meaningless technical barrier to review (seeBingham v. New York City Tr. Auth.,99 N.Y.2d 355, 359, 756 N.Y.S.2d 129, 786 N.E.2d 28[2003]).Here, for example, had defendant earlier raised CPLR 3215(f), plaintiff might well have filed the documents referenced in that section; the affidavit or verified complaint specified in CPLR 3215(f)"need only allege enough facts to enable a court to determine that a viable cause of action exists"(Woodson v. Mendon Leasing Corp.,100 N.Y.2d 62, 71, 760 N.Y.S.2d 727, 790 N.E.2d 1156[2003]).Today, nearly a decade after the incident, and years after dismissal of all codefendants with prejudice, the potential harm to plaintiff from reversing the consequence of Safway's counseled course of action is manifest.

As the conditional order was self-executing and appellant's "failure to produce [requested] items on or before the date certain" rendered it "absolute"(seeZouev v. City of New York,32 A.D.3d 850, 850, 821 N.Y.S.2d 620[2d Dept2006];Lopez v. City of New York,2 A.D.3d 693, 693, 768 N.Y.S.2d 621[2d Dept2003]), the courts below correctly held that defendant was precluded from introducing any evidence at the inquest "tending to defeat the plaintiff's cause of action"(Rokina Opt. Co. v. Camera King,63 N.Y.2d 728, 730, 480 N.Y.S.2d 197, 469 N.E.2d 518[1984];seeWeinstein-Korn-Miller, N.Y. Civ Prac¶ 3126.03[a conditional order "will preclude proof as to matters not furnished unless the delinquent party provides the particulars within the time frame specified in the order"]).As a result, Safway was deemed to admit "all traversable allegations in the complaint, including the basic allegation of liability"(Curiale v. Ardra Ins. Co.,88 N.Y.2d 268, 279, 644 N.Y.S.2d 663, 667 N.E.2d 313[1996]).

Addressing the dissent, we agree that courts must protect the integrity of the judicial process and ensure that plaintiffs do not secure money judgments based on fraudulent claims.We do, however, assure those objectives by insisting on the parties' compliance with statutes and orders throughout the litigation process, particularly when both sides are represented by counsel engaged to make, and respond to, arguments for their clients.The objectives of honesty and integrity are not furthered when the Court goes outside applicable law to itself raise arguments not preserved in the trial court.Indeed, the dissent's major point — noncompliance with CPLR 5015(a)(3) — has not even been presented to us.

For this Court now to do the "lawyering" is problematic for additional reasons.Here, for example, there is nothing nefarious in the 16-year-old's statement to hospital personnel immediately after the incident that he thought a piece of broken glass had fallen into his eye when he looked up.He did not actually know what had fallen into his eye; there is no "new theory"(dissenting mem at 182).Nor does the opinion of another defendant's expert establish that a metal pellet was fired from an air gun (dissenting mem at 181-82); plaintiffs treating physician at the inquest acknowledged that the injury also could have been caused by a small metal object dropping from above.Finally, the dissent's solution — again not sought by Safway before us — overlooks the unfairness to plaintiff of remittal for a hearing at this point, long after the accident and dismissal of all other defendants.

PIGOTT, J. (dissenting).

I respectfully dissent.In my view, Supreme Court abused its discretion by failing to consider the compelling evidence that plaintiffs negligence cause of action against Safway was fraudulent.Although Safway's answer was properly stricken due to its failure to comply with discovery demands, shortly thereafter, it presented proof that plaintiff's eye injury was caused by an air gun pellet, and not from a falling object emanating from its scaffold, as was alleged in the complaint.Such evidence should have been considered because courts must protect the integrity of the judicial process and ensure that undeserving plaintiffs are not awarded monetary judgments predicated upon fraudulent claims.

According to plaintiff's attorney-verified complaint (i.e., not sworn to by plaintiff or his guardian), plaintiff was injured "as a result of a dangerous, defective and/or unsafe condition existing upon [the] . . . construction site when a piece of material was caused to fall from a scaffold or an area above" striking him in the eye.Safway's answer was stricken after it failed to comply with plaintiff's discovery demands and a conditional preclusion order.A short time later, plaintiff produced the "object" that hit him in the eye.The object was examined by Joseph F Dyro, a certified clinical engineer with a Ph.D. in biomedical electronics engineering from the University of Pennsylvania, who opined that it was "equivalent in appearance, weight and dimensions to a 0.177 caliber pointed lead air-gun pellet."Based upon the nature of plaintiff's injury, the expert concluded that the object was fired directly into plaintiff's eye and did not fall from the scaffold.

In response to plaintiff's motion for an inquest on damages, Safway cross-moved to dismiss the complaint, arguing that the object that caused plaintiff's injury did not come from its scaffold.Notably, during the pendency of this motion, after the air gun pellet was produced and examined, plaintiff discontinued the action against all nondefaulting defendants.Supreme Court nevertheless granted plaintiff's motion for an inquest against Safway and denied Safway's cross motion to dismiss the complaint.The court concluded that Safway, through its default in responding to plaintiffsdiscovery demands, admitted the traversable allegations in the complaint regarding liability and causation...