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Midland Credit Management, Inc., Plaintiff, v. Luis Arroyo, Defendant.
The instant consumer credit action was commenced on March 1, 2021 with the filing of the Plaintiff's Summons and Complaint, seeking $1,908.21 in damages, plus the costs and disbursements of this action.
Plaintiff served interrogatories upon the Defendant on September 7, 2022.On October 4, 2022, Plaintiff made a motion to compel after the Defendant did not respond within the statutory timeframe. This Court granted Plaintiff's motion to compel on December 12, 2022 and set 30 days for the Defendant to answer interrogatories after service of the Order to compel with the Notice of Entry.
Plaintiff now moves for the extreme sanction of striking the Defendant's Answer and entering judgment in favor of the Plaintiff for the relief demanded in the Complaint, predicated on the Defendant's failure to respond to the Plaintiff's interrogatories, entering judgment against the Defendant's interrogatories in accordance with this Court's December 12, 2022 Order.
Before addressing the merits of the Plaintiff's argument, this Court must deal with the basic problem that the Plaintiff's instant motion is not properly before this Court. Plaintiff brings this motion pursuant to CPLR § 3216, a statutory selection that bears not upon the relief earnestly sought.
CPLR § 3216 reads:
(a) Where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, with notice to the parties, may dismiss the party's pleading on terms. Unless the order specifies otherwise, the dismissal is not on the merits.
(b) No dismissal shall be directed under any portion of subdivision (a) of this rule and no court initiative shall be taken or motion made thereunder unless the following conditions precedent have been complied with:
(1) Issue must have been joined in the action;
(2) One year must have elapsed since the joinder of issue or six months must have elapsed since the issuance of the preliminary court conference order where such an order has been issued, whichever is later;
(3) The court or party seeking such relief, as the case may be, shall have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him or her for unreasonably neglecting to proceed. Where the written demand is served by the court, the demand shall set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation.
(c) In the event that the party upon whom is served the demand specified in subdivision (b) (3) of this rule serves and files a note of issue within such ninety day period, the same shall be deemed sufficient compliance with such demand and diligent prosecution of the action; and in such event, no such court initiative shall be taken and no such motion shall be made, and if taken or made, the court initiative or motion to dismiss shall be denied.
(d) After an action has been placed on the calendar by the service and filing of a note of issue, with or without any such demand, provided, however, if such demand has been served, within the said ninety day period, the action may not be dismissed by reason of any neglect, failure or delay in prosecution of the action prior to the said service and filing of such note of issue.
(e) In the event that the party upon whom is served the demand specified in subdivision (b) (3) of this rule fails to serve and file a note of issue within such ninety day period, the court may take such initiative or grant such motion unless the said party shows justifiable excuse for the delay and a good and meritorious cause of action.
(f) The provisions of this rule shall not apply to proceedings within rule thirty-four hundred four (CPLR § 3216).
There is nothing within CPLR § 3216 covering the striking of a pleading and subsequent entry of judgment for failure to comply with discovery obligations, and thus, Plaintiff's motion is not properly before this Court. CPLR § 3126 (3), however, precisely governs the relief Plaintiff here seeks, to wit, the striking of a pleading and entry of judgment. Under CPLR § 3126 (3):
If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them:
1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or
2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or
3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party (CPLR § 3126).
In recognition of New York's longstanding policy to resolve legal disputes on their merits rather than merely disposing of inartfully drafted pleadings such as the Plaintiff's instant motion on technical defects (see Leon v Martinez, 84 NY2d 83  ["In light of these principles, we agree with the majority at the Appellate Division that the instant complaint and supporting affidavit, although inartfully drafted, adequately alleged for pleading survival purposes that the instrument prepared by assignment to plaintiffs of interests in the future settlement."].), this Court now converts the Plaintiff's CPLR § 3216 motion to a motion made pursuant to CPLR § 3126 (3).
In a New York trial court, where the scales of justice ought to be balanced with a feather's precision, this Court is presented with a motion that, at its very core, seems to cut against that principle. However unintentional, the Plaintiff's motion does not apply the relevant legal principles in any meaningful way, instead resulting on a bare conclusory allegation.
As a broad rule, when a trial court examines and renders a decision upon a party's motion, the court engages in a dialectic guided principally by a twofold inquiry: firstly, the determination of whether a relevant and precise rule or standard exists for adjudicating the motion in question; and secondly, the ascertaining of whether the proponent of the motion has sufficiently demonstrated the fulfillment or adherence to this identified criterion of evaluation. This methodological process, far from being a mere scholastic conjecture, serves as the fundamental scaffolding upon which the edifice of judicial intervention is constructed and maintained.
In this regard, the sagacious observation of Alexander Hamilton, as articulated in the Federalist No. 78, remains notably apposite. Hamilton postulated, with considerable foresight and acumen, that "...the judiciary is the weakest of the three departments of power" (Alexander Hamilton, The Federalist Papers No. 78 ). This insight bears considerable weight in its recognition that the judiciary, by its inherent nature and constitution, is constricted to the disputes and contentions directly placed before it; the settlement of disputes and development of law always starts with the case and arguments set forth by the parties themselves and the authoritative legal materials (Henry Hart & Albert Sacks, The Legal Process: Basic Problems in the Making and Application of Law ; see also Neil Duxbury, Faith in Reason: The Process Tradition in American Jurisprudence, 15 Cardozo L Rev 601 ). While the development of American law is synthesized over the entire history of our Nation, this development always begins with principles that are immanent within the relevant statutes and case law, beginning with the question(s) at issue in the dispute before the court.
The judiciary's role, thus anchored in such case-centric analysis, underscores the fundamental axiom that the fountainhead of legal development and decision-making flows from the arguments and submissions of the litigants themselves, as well as the established corpus of legal doctrines and statutes. New York law similarly requires that motions be resolved upon grounds that are "not too dramatically unlike" what is actually presented in the moving papers (see Tirado v Miller, 75 AD3d [2d Dept 2010]).
The logic behind Tirado confines New York trial courts to the arguments and proof set forth before the tribunal; while general relief clauses permit trial judges to look for alternative grounds in determining a motion, such grounds must be substantially related to the arguments and proof presented by a party. For the reasons more fully set forth below, the operative part of Plaintiff's argument consists of a single conclusory argument that fails to meaningfully address why the Defendant's conduct satisfies the relevant New York standard for allowing the striking of a pleading and an entry of default, instead asking this Court to take the role of an advocate and make such conclusions on its own. This Court declines to entertain that role.
In the instant motion, this Court is called upon to determine the appropriateness of the Plaintiff's motion to strike the Defendant's answer pursuant to CPLR § 3126 (3) for non-compliance with the Plaintiff's interrogatory requests. The Plaintiff seeks relief on the grounds that Defendant's failure to respond to interrogatories duly served, and ordered by this Court on December 12, 2022. The framework of disclosure, as codified within the CPLR, provides parties with a means to seek discovery, among which is the right to serve written interrogatories post the commencement of an action, as clearly stated in CPLE § 3130 (1). It is incumbent upon the court to ensure that these statutory tools are not misapplied or used to unduly penalize parties, particularly where the assertion of willful non-compliance has not been properly established.
CPLR § 3124 further empowers a party to enforce compliance with discovery demands. However, CPLR § 3101 also imposes an obligation on parties to engage in a fair and full disclosure, subject to the court's broad discretion to prevent abusive practices.
Disclosure mandates delineate the procedural pathways for parties to secure discovery, including but not limited to the deployment of interrogatories: "Except as otherwise provided herein, after commencement of an action, any party may serve upon any other party written interrogatories" (CPLE § 3130). These mandates equally confer upon litigants the leverage to exact adherence to discovery entitlements. In this regard, CPLR § 3124 articulates that "[i]f a person fails to respond to or comply with any request notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response" (CPLR § 3124).
Although CPLR § 3101 endorses a liberal exchange of information, the act of expunging a pleading per CPLR § 3126 (3) is an extreme course of action, reserved solely for scenarios where the party against whom the motion is made has engaged in conduct that is "willful, contumacious, or in bad faith" (Peterson v NY Cent Mutual, 174 AD3d 1386, 1388 [4th Dept 2019] [citing Hann v Black, 96 AD3d 1503 [4th Dept 2012]). A stringent demonstration of willful and obstinate noncompliance with court-mandated discovery precedes the invocation of such a severe sanction (Crupi v Rashid, 157 AD3d 858 [2d Dept 2018]).
While New York's jurisprudence supports extensive discovery, there is a discernible judicial hesitance towards the utilization of discovery mechanisms as mere fishing expeditions to unearth advantageous material from adversaries (see McCann v Harleysville Ins. Co. of New York, 78 AD3d 1524 [4th Dept 2010]). New York's evidentiary guidelines invest trial courts with considerable discretion to curtail exploitative applications of discovery tools (see Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3101 at 12 [2018 ed]). The determination of whether the pursuit of information is congruent with the expansive benchmarks of CPLR § 3101 (a) resides with the presiding trial justice's discernment (Andon v 302-304 Mott Street Assocs., 94 NY2d 740 ).
At bar is the Plaintiff's motion seeking the sanction of striking the Defendant's pleading under CPLR § 3126(3), predicated on the Defendant's failure to respond to the Plaintiff's interrogatories. In adjudicating the motion, we are guided by the principles that underpin the rules of disclosure as embodied within the CPLR and informed by established precedent. This Court finds that Plaintiff's interrogatory requests indeed satisfies the broad criteria set forth in CPLR § 3101. Nevertheless, despite the Defendant's delay in responding to discovery requirements, there is not only insufficient evidence in the record to show that the Defendant's failure to respond was clearly willful and contumacious, Plaintiff's moving papers fail to allege any such conduct; such omissions constitute a fatal defect in Plaintiff's instant motion.
Central to the matter before us is the application of CPLR § 3126(3), a statute that permits the court to strike a pleading for failure to comply with this Court's discovery order. The jurisprudence of Appellate Division has consistently held that such a sanction is profoundly severe and is reserved for instances where the defaulting party's conduct is willful, contumacious, or in bad faith (Peterson v NY Cent Mutual, 174 AD3d 1386, 1388 [4th Dept 2019]; Hann v Black, 96 AD3d 1503 [4th Dept 2012]). The Plaintiff's burden is to demonstrate, with clear evidence, that the failure to comply was of such a nature.
In the case at hand, this Court notes the absence of any evidence or allegation that the Defendant's failure to respond to interrogatories was willful or contumacious. The Plaintiff's papers do not assert such behavior, and the record is devoid of proof to suggest that the Defendant's non-compliance arose from a willful, contumacious, or malicious stance. A mere lack of response does not inherently indicate a willful disregard of the discovery process (Crupi v Rashid, 157 AD3d 858 [2d Dept 2018]).
Here, the Plaintiff argues in a mere single sentence Defendant's silence equates to willful and contumacious disobedience of this Court's, warranting a striking of Defendant's answer and granting of judgment for the Plaintiff:
"Having failed to respond to a Court Order, the only conclusion that can be reached is the Defendant is willfully and contumaciously refusing to comply with a Court Order and it is requested that the answer be stricken and Plaintiff be directed to enter judgment in the amount requested in the complaint before the Court Clerk" (affirmation of Craig S. Stiller, Esq. at 9).
The argument brought forth by Plaintiff, wrapped in the solemn attire of legal jargon, invites the Court to take a rather adventurous leap from presumption to conclusion without the inconvenience of intermediate analysis. This Court is mindful of the axiom that the mere recitation of a legal standard does not a fortress make, and an attorney's conclusion drawn therefrom can often be as nebulous as the mist on a vernal morning. New York law, in its majestic equality, demands more than the incantation of the term "willful and contumacious" to summon into existence a factual basis sufficient for striking a complaint.
Plaintiff's motion — while spirited in its endeavor to weave a tapestry of willful disobedience upon the loom of legal reasoning — appears to be threadbare in its demonstration that all other explanations for Defendant's non-response have been carefully considered and can be justifiably discarded. The Plaintiff's argument, though it stands with the confidence of a Grecian column, is upon inspection as hollow as its modern replica. The ultimate requirement of the adversarial system is that judicial decisions be based on facts adduced by the parties themselves, where the prevailing party proves its entitlement to relief under the relevant legal standard; in the present case, the Plaintiff asks the Court to prove its case for it. It is noted that, while litigants routinely ask courts to make reasonable inferences, those inferences must be drawn from a valid argument which, by express premise or reasonable inference, forecloses upon alternative explanations which would render the adverse party not liable to the applicable standard. That is not the case where, as here, the Plaintiff merely ties the words "willfully" and "contumaciously" to the Defendant's failure to answer without explaining why this is "the only conclusion that can be reached." Therefore, Plaintiff's argument falls dead at its inception.
The Court notes that the wheels of justice, though they may grind slowly, are not to be lubricated by the oil of presumption. It is not enough to suggest that because the Defendant has not responded, they have therefore planted their standard in the camp of contumacy. Such an assertion is as perilous as navigating the Sirens' Strait with but a whispered rumor for a map. The vessel of our reasoning requires a stronger structure.
Though this Court appreciates Plaintiff's brevity and, indeed, the almost poetic conciseness with which it has presented his case, the Court is not at liberty to indulge in the fanciful notion that brevity is the soul of wit when the gravity of a drastic remedy a striking a pleading and granting default judgment is at stake. This Court is bound by law to be as skeptical of overtures that skip merrily across the surface of due process as we are of unseemly delays in litigation.
In the instant motion, Plaintiff has not met the burden of excluding other possibilities for the Defendant's failure to respond to its interrogatories, such as inadvertence, misunderstanding, or even mere neglect, which, while perhaps blameworthy, does not rise to the level of the willful defiance required for the striking of a pleading and entry of judgment.
Moreover, given the Defendant's status as a pro se litigant, this Court is mindful that such status does not automatically equate to willful non-compliance. Pro se litigants often lack the technical understanding of legal procedures, and their missteps, absent evidence to the contrary, should not be hastily construed as contumacious (see (see Corsini v U-Haul Intl., 212 AD2d 288, 291  ["Allowances are normally made for pro se litigants."]). Notwithstanding the Defendant's protracted response to the discovery demands, the evidentiary corpus lacks adequate substantiation that the Defendant's reticence was overtly willful and contemptuous, and the Plaintiff's submission does not assert such behavior; these lapses form a critical flaw in the Plaintiff's present motion.
Therefore, considering all of the foregoing, this Court finds that the Plaintiff's motion fails to meet the stringent standard required for the striking of a pleading and granting judgment in favor of the Plaintiff. There is an evident lack of demonstration of willful or contumacious conduct by the Defendant, and as such, the drastic relief sought by the Plaintiff is unwarranted. The policy of the CPLR is to resolve actions on their merits and the courts should not deprive a litigant of their day in court absent clear evidence of willful and obstructive behavior.
Accordingly, this Court holds that conclusory allegations of law, unsupported by reference to articulable facts which necessarily entails a conclusive showing that the movant is entitled to relief, do not constitute grounds for granting a motion. Therefore, the Plaintiff's motion to strike the Defendant's pleading for non-compliance with the Plaintiff's interrogatory demands is hereby denied. It is the expectation of this Court that the parties proceed with discovery in a manner that is consistent with the purpose of New York law to promote the fair and efficient administration of justice.
Accordingly, it is hereby
ORDERED that the Plaintiff's motion for default judgment is DENIED in its entirety; and it is further
ORDERED that the Plaintiff shall serve a copy of this Order, together with a Notice of Entry; on the Defendant by certified mail within 14 days of Entry of this Order; and it is further
ORDERED that Defendant's failure to comply with Plaintiff's interrogatory requests within 30 days of service of a copy of this Order, absent good cause shown, will constitute willful and contumacious disregard of this Order.
It is so ordered.
E N T E R
Dated: November 3, 2023
Buffalo, New York
Hon. Rebecca L. Town
Buffalo City Court Judge
Rebecca L. Town, J.
Response sent, thank you
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Docket No: Index No. 1057-21
Decided: November 03, 2023
Court: City Court, New York,
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