SANFORD CHIROPRACTIC, P.C. a/a/o Martel Paterson, Plaintiffs, v. NEW SOUTH INSURANCE COMPANY, Defendants.
In this action for the payment of no-fault benefits, defendant seeks an order pursuant to 22 NYCRR 2018.17 striking the Notice of Trial on grounds that, inter alia, plaintiff did not provide the information requested in its Demand for Verified Interrogatories (interrogatories) and failed to appear for a deposition. Defendant also seeks an order striking the complaint for failure to provide the discovery requested and/or an order compelling plaintiff to provide the foregoing discovery. Plaintiff opposes the instant motion asserting that it has responded to the foregoing demand.
For the reasons that follow hereinafter, defendant's motion is granted, in part.
The instant action is for the payment of medical benefits pursuant to Article 51 of the New York State Insurance Law. It is alleged that secondary to a motor vehicle accident on August 26, 2017, plaintiff provided medical services to MARTIN PATERSON, who assigned his no-fault benefits under the Insurance Law and defendant's policy to plaintiff. Plaintiff, upon presenting proof of the foregoing services, requested payment totaling $4,000. Defendant has failed to pay the foregoing amount and, thus, plaintiff seeks a judgment in the amount of $4,000.
Motion to Strike the Notice of Trial
Defendant's motion seeking to strike the Notice of Trial is granted insofar as the instant motion is timely and the Notice of Trial misrepresents that discovery is complete.
22 NYCRR 208.17, inter alia, promulgates the circumstances under which the Civil Court can order vacatur of a Notice of Trial. 22 NYCRR 208.17(c), states that
[w]ithin 20 days after service of such notice of trial, any party may move to strike the action from the calendar or to keep it from being placed thereon. The affidavit in support of the application must specify the reason the action is not entitled to be on the calendar.
Additionally, 22 NYCRR 208.17(d) states that
[a]fter any action has been placed on the trial calendar pursuant to this rule, no pretrial examination or other preliminary proceedings may be had, except that if some unusual or unanticipated conditions subsequently develop which make it necessary that further pretrial examination or further preliminary proceedings be had, and if without them the moving party would be unduly prejudiced, the court may make an order granting permission to conduct such examination or proceedings and prescribing the time therefor. Such an order may be made only upon motion on notice showing in detail, by affidavit, the facts claimed to entitle the moving party to relief under this subdivision.
A review of the foregoing language evinces that it is virtually identical to the rule applicable to cases venued in the Supreme Court and promulgated by 22 NYCRR 202.21. Indeed, when discussing the substance of 202.17, the Appellate Term routinely refers to and applies Appellate Division case law related to 22 NYCRR 202.21. For example, in Tahir Med., P.C. v Cent. Mut. Fire Ins. Co. (42 Misc 3d 135[A][App Term 2014]), the court relied on Nielsen v New York State Dormitory Auth. (84 AD3d 519 [1st Dept 2011]), a case venued in Supreme Court to hold that “[d]efendant's timely motion to strike the action from the trial calendar should have been granted, since plaintiff's August 15, 2011 certificate of readiness falsely stated that there were no outstanding discovery requests” (Tahir Med., P.C. at *1; see Allstate Social Work and Psychological Services, P.L.L.C. v Autoone Ins. Co., 34 Misc 3d 128[A], *1 [App Term 2011] [Court relied on, inter alia, Fausto v City of New York (17 AD3d 520 [2d Dept 2005]), which discussed the need to timely move to vacate a Note of Issue.] ). Similarly, in Galdi v Kaliya, (32 Misc 3d 128[A] [App Term 2011]), relying on (Schissler v Brookdale Hosp. Ctr. (289 AD2d 469, 470 [2d Dept 2001]), a case venued in the Supreme Court, the court held that “[t]he unanticipated death of defendants' orthopedist after examining plaintiff constituted an unusual and unanticipated condition which warranted a further physical examination of plaintiff after the action had been placed on the trial calendar” (Galdi at *1 [internal quotation marks omitted] ). Thus, because there is substantially more case law discussing 22 NYCRR 202.21 than 22 NYCRR 208.17 and for purposes of vacating a Note of Issue/Notice of Trial the law is the same, hereinafter, this Court shall discuss the law governing 202.21 and shall apply the same to the instant motion.
Pursuant to 22 NYCRR 202.21(e), the court can vacate a note of issue when it is based on a Certificate of Readiness which contains erroneous facts (Ortiz v Arias, 285 AD2d 390, 390 [1st Dept 2001]). Specifically, a note of issue premised upon a Certificate of Readiness which asserts that all discovery is complete when, in fact, it is not, should be vacated (Savino v Lewittes, 160 AD2d 176, 178 [1st Dept 1990]; Spilky v TRW, Inc., 225 AD2d 539, 540 [2d Dept 1996]; Levy v Schaefer, 160 AD2d 1182, 1183 [3d Dept 1990]). Additionally, a motion pursuant to 22 NYCRR 202.21(e) must be made within 20 days of the note's service upon the party seeking to vacate it (22 NYCRR 202.21[e]; Tirado v Miller, 75 AD3d 153, 157 [2d Dept 2010]). A belated motion should be denied (Utica Mut. Ins. Co. v P.M.A. Corp., 34 AD3d 793, 794 [2d Dept 2006]; Rodriguez v Sau Wo Lau, 298 AD2d 376, 377 [2d Dept 2002]), and a defendant to whom discovery is owed then waives the right to such discovery (Manzo v City of New York, 62 AD3d 964, 965 [2d Dept 2009] [“The defendants waived their right to conduct an additional physical examination of the injured plaintiff when they failed to move to vacate the note of issue within 20 days after service of the note of issue and the certificate of readiness.”]; James v New York City Transit Authority, 294 AD2d 471, 472 [2d Dept 2002]). Notably, when the party seeking to vacate a note of issue because discovery remains outstanding has had ample time to procure the discovery sought prior to the filing of the note, and made no effort to do so, the failure to procure discovery is deemed solely the fault of the party seeking vacatur, and the court, in the exercise of its discretion, can deny a motion to vacate the note (Torres v New York City Transit Authority, 192 AD2d 400, 400 [1st Dept 1993]). Under the foregoing circumstances, it is not an abuse of discretion to allow the note of issue to stand while concomitantly ordering that discovery be conducted to completion (id.).
As noted above, generally, a defendant to whom discovery is owed waives the right to such discovery when a plaintiff files his or her note of issue and the defendant fails to timely move to vacate it (Manzo at 965 [“The defendants waived their right to conduct an additional physical examination of the injured plaintiff when they failed to move to vacate the note of issue within 20 days after service of the note of issue and the certificate of readiness.”]; James at 472). However, “[w]here unusual or unanticipated circumstances develop subsequent to the filing of a note of issue, which require additional pretrial proceedings to prevent substantial prejudice, the court, upon motion supported by an affidavit, may grant permission to conduct such necessary proceedings (22 NYCRR 202.21[d] ). Thus, when it is demonstrated that unusual and unanticipated circumstances merit post-note discovery, the court has the discretion to order the same (Schroeder v IESI NY Corp., 24 AD3d 180, 181 [1st Dept 2005] [“The other method of obtaining post-note of issue disclosure is found in 22 NYCRR 202.21 (d). This section permits the court to authorize additional discovery ‘[w]here unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness’ that would otherwise cause ‘substantial prejudice.’ Because this section requires both unusual and unanticipated circumstances and substantial prejudice, it has been described as the ‘more stringent standard.’ ”]; Audiovox Corp. v Benyamini, 265 AD2d 135, 140 [2d Dept 2000] [“Applying the above rules to the facts of this case, it is undisputed that the defendant did not move to vacate the note of issue within 20 days of its filing. Accordingly, the defendant was required to demonstrate that unusual or unanticipated circumstances developed subsequent to the filing of the note of issue and certificate of readiness which required additional discovery to prevent substantial prejudice.”] ). The foregoing is equally applicable to non-party discovery and can form the basis for the grant of a motion seeking to quash a subpoena on grounds that post-note of issue discovery is unwarranted (Maron v Magnetic Const. Group Corp., 128 AD3d 426, 427 [1st Dept 2015]; White v Bronx Lebanon Hosp. Ctr., 240 AD2d 212, 212 [1st Dept 1997]).
Notably, the mere need for further discovery (Price v Bloomingdale's, a Div. of Federated Dept. Stores, Inc., 166 AD2d 151, 152 [1st Dept 1990] [“Notwithstanding that the physical examination sought by defendant might enhance the prospect of settlement without prejudice to plaintiff, we think it clear that such considerations do not fall within the ‘unusual and unanticipated circumstances’ rubric of the rule permitting post-note of issue pretrial proceeding.”] ), or the absence of prejudice if post-note discovery is authorized, is not an unusual or unanticipated circumstance warranting further post-note discovery (Price v Brody, 7 AD2d 204, 205 [1st Dept 1959] [“In the case at bar, no claim of special, unusual or extraordinary circumstances was made by the defendant nor was there any such finding at Special Term. Absent any special, unusual or extraordinary circumstances, it was an inappropriate exercise of discretion to deny plaintiffs' motion to vacate defendant's notice of examination before trial. The oft-enunciated policy of encouraging pre-trial disclosure in most cases in and of itself is not sufficient to excuse a party's failure to comply with the Special Rule Respecting Calendar Practice. The further fact, as stated here, that neither party will be prejudiced by allowing the examination, should not be a decisive factor in permitting departure from the general rule. Present special, unusual or extraordinary circumstances, spelled out factually, the court has discretion to depart from this interpretation of the rule. In all cases involving this rule, however, the judicial discretion to be exercised should be discreet, circumspect, prudent and cautious, and no party should be relieved of compliance with its provisions unless it clearly appears that the interests of justice require it” (internal citations omitted) ] ).
In support of the instant motion, which as per the affidavit of service was served upon plaintiff on September 4, 2018, defendant submits several discovery demands served upon plaintiff, only two of which are relevant to this decision. First, defendant submits its interrogatories dated May 23, 2018. Notably, the interrogatories contain 13 questions. Second, defendant submits a Notice of Examination Before Trial (demand for deposition), also dated May 23, 2018, which sought a deposition on July 9, 2018.
Defendant also submits plaintiff's response to defendant's interrogatories, which is dated May 29, 2018. Notably, the foregoing document is responsive to 42 questions. Defendant also submits Plaintiff's Objection to Defendant's Demand for Deposition, wherein plaintiff objects to the deposition sought. Significantly, plaintiff interposes two objections, namely that it is not required to attend a deposition until defendant establishes a timely denial of the claims made and that no depositions are required until defendant establishes that the information sought cannot be obtained via less burdensome discovery.
Defendant submits a letter, dated June 26, 2018, wherein it apprises plaintiff that its respons to defendant's interrogatories are insufficient inasmuch as they appear to be responsive to other unrelated interrogatories and in any event are unverified
Lastly, defendant submits plaintiff's Notice of Trial, dated August 6, 2018, wherein it is alleged that all discovery is complete.
In opposition to the instant motion, plaintiff submits a response to defendant's interrogatories dated March 4, 2019. The response addresses 13 questions. However, plaintiff objects to five of the questions and articulates why 1 .
Defendant's motion seeking to strike the Notice of Trial is granted. As noted above, 22 NYCRR 208.17, inter alia, promulgates the circumstances under which the court can order vacataur of a Notice of Trial. Such section is, virtually identical to the rule applicable to cases venued in the Supreme Court and promulgated by 22 NYCRR 202.21. As such when discussing the substance of 202.17, the Appellate Term routinely refers to Appellate Division case law related to 22 NYCRR 202.21 (Tahir Med., P.C. at *1; P.L.L.C. at *1; Galdi at *1). A note of issue premised upon a Certificate of Readiness which asserts that all discovery is complete when, in fact, it is not, should be vacated (Savino at 178; Spilky at 540; Levy at 1183). Additionally, a motion pursuant to 22 NYCRR 202.21(e) (or as relevant here, 22 NYCRR 208.17[c] ) must be made within 20 days of the note's service upon the party seeking to vacate it (Tirado at 157). Otherwise, the court should deny such motion (Utica Mut. Ins. Co. at 794; Rodriguez at 377), and a defendant to whom discovery is owed then waives the right to such discovery (Manzo at 965; James at 472).
Based on the foregoing, the instant motion is timely. CPLR § 2211 states that “[a] motion on notice is made when a notice of the motion or an order to show cause is served” (see Ageel v Tony Casale, Inc., 44 AD3d 572, 572, 845 [1st Dept 2007]; Gazes v Bennett, 38 AD3d 287, 288[1st Dept 2007]). Per the affidavit of service appended to defendant's motion, the instant motion was made on September 4, 2018. As per the Court's file, the Notice of Trial was served upon defendant on August 7, 2018. Applying CPLR § 2103(2), which states that “where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period, defendant had 25 days from August 7, 2018 to timely make the instant motion, or until Saturday, September 1, 2018. Applying General Construction Law § 25-a 2 , defendant had until Tuesday, September 4, 2018 to make the instant motion because Monday, September 3, 2018, was Labor Day, a holiday.
Defendant correctly contends, that because the responses to the interrogatories were provided by counsel and were unsworn, in violation of CPLR 3133(b), they were defective. Moreover, defendant asserts that plaintiff never appeared for a duly requested deposition. Thus, defendant correctly argues that plaintiff misrepresented that discovery was complete when it filed its Notice of Trial, thereby warranting vacatur of the same.
Preliminarily, plaintiff concedes that its response to the interrogatories, dated May 29, 2018 was unresponsive to defendant's demand. However, plaintiff's response to defendant's interrogatories, dated March 4, 2019 - which plaintiff claims is fully responsive - is also deficient because it is unsworn and the responses are provided by counsel. To be sure, CPLR § 3133(b) states that
[i]interrogatories shall be answered in writing under oath by the party served, if an individual, or, if the party served is a corporation, a partnership or a sole proprietorship, by an officer, director, member, agent or employee having the information.
While there is a dearth of case law regarding whether an attorney can respond to interrogatories, three cases make clear that generally an attorney may not interpose answers to interrogatories. In Lubell v Work Wear Corp. (82 Misc 2d 1000, 1001 [Civ Ct 1975], affd, 86 Misc 2d 1001 [App Term 1976]), the court rejected plaintiff's claim that responses to interrogatories by counsel were proper and compliant with CPLR § 3134(a), which like CPLR § 3133(b), required that interrogatories
be answered in writing under oath by the party upon whom served, if an individual, or, if the party served is a corporation, a partnership, or sole proprietorship, by any officer, director, agent or employee having the information
(82 Misc 2d 1001). Instead, the court noted that pursuant to CPLR § 3131, answers to interrogatories may be used to the same extent as the depositions of a party, and are therefore, “a disclosure device, to seek evidence, under oath, from the [ ] defendant by individuals connected with it who have personal knowledge of the facts” (id. at 1002). Thus, the trial court ruled that answers to interrogatories are proper when given under oath by someone with personal knowledge (id. at 1002; see Corriel v Volkswagen of Am., Inc., 127 AD2d 729, 730 [2d Dept 1987] [“The appellant served interrogatories on the plaintiff simultaneously with its answer on September 30, 1985. No objection was made thereto (CPLR 3133) nor did the plaintiff move for a protective order (CPLR 3103). On or about December 18, 1985, unverified answers to the interrogatories were served by the plaintiff's counsel. The answers did not comply with the requirements of CPLR 3134 which provides that such answers shall be ‘in writing under oath by the party upon whom served’ and ‘shall be preceded by the question to which it responds’. The plaintiff's answers were in an incorrect form and lacked the requisite verification.”] ). In MOPS Med. Supply v Geico Ins. Co. (4 Misc 3d 185 [Civ Ct 2004]), the court came to the same conclusion in rejecting answers to interrogatories that were unverified and provided by counsel (id. at 188-89 [“As an initial matter, the responses to the interrogatories were not verified, and they fail to identify the name and address of the individual responding to the interrogatories; rather, they state only that they were answered by the plaintiff's attorney.”] ). Despite the dearth of case law on this issue, the clear and express language of CPLR § 3133(b) when examined against the backdrop of well-settled principles of statutory construction support the position that counsel may not provide answers to interrogatories. To be sure, CPLR § 3133(b) states that interrogatories are to “be answered in writing under oath by the party upon whom served.” Pursuant to Statutes Law § 92, “[t]he primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature.” Moreover, when interpreting statutes, it is well settled that the legislative intent is ascertained from “the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction” (Statutes Law § 94; Kuzmich v 50 Murray St. Acquisition LLC, 34 NY3d 84, 91 , rearg denied, 33 NY3d 1135 , cert denied, 140 S Ct 904  [“As we have repeatedly explained, courts should construe unambiguous language to give effect to its plain meaning. Absent ambiguity the courts may not resort to rules of construction to alter the scope and application of a statute because no such rule gives the court discretion to declare the intent of the law when the words are unequivocal” (internal citations and quotation marks omitted) ] ). Thus, the use of the word “party” as the person who must answer interrogatories rather than the words “attorney,” “counsel,” or “lawyer,” makes it clear that the intent of the statute is to have the individual party, in the case of an individual, provide responses to interrogatories.
Based on the foregoing, the instant interrogatories are deficient as a matter of law because they are unsworn and responded to by counsel. Accordingly, when plaintiff filed its Notice of Trial, certifying that discovery was complete, it misrepresented the same.
Insofar as despite defendant's demand for a deposition plaintiff failed to appear, plaintiff further misrepresented the completion of discovery when it filed its Notice of Trial. Notably, plaintiff never addresses the portion of defendant's motion, premised on plaintiff's failure to appear for a deposition, which is akin to a concession. Significantly, however, plaintiff's response to the demand for deposition - that defendant is not entitled a deposition unless it demonstrates that the responses provided to the interrogatories were insufficient - would have been availing had plaintiff provided a proper response to the interrogatories. Instead, this Court's decision is in and of itself evidence that the response provided was insufficient.
It is well settled that
[a]lthough a party is generally free to choose the disclosure devices it wishes to use and the order in which it uses them, it is a generally accepted rule that one method of disclosure should be completed before resorting to another
(Samsung Am., Inc. v Yugoslav-Korean Consulting & Trading Co., Inc., 199 AD2d 48, 49 [1st Dept 1993] [“Further, the overly broad interrogatories which called for all bank accounts and information concerning tax filings must also await completion of Dizdarevic's oral deposition so as to more particularly pinpoint the documents needed to prosecute this lawsuit or defend against the counterclaims.”]; Curran v Upjohn Co., 122 AD2d 929 [2d Dept 1986]; Giffords Oil Co. v Spinogatti, 96 AD2d 851, 851 [2d Dept 1983]; Katz v Posner, 23 AD2d 774, 775 [2d Dept 1965] [“With respect to the interrogatories, it is our opinion that although under the statute (CPLR 3101) a party may be entitled to an examination both orally and by written interrogatories, he should first invoke one or the other of these devices. If the device first chosen does not adequately disclose all evidence material and necessary to the prosecution or defense of the action (CPLR 3101), then the other available remedy may be utilized.”] ).
Here, where, as noted above, defendant's interrogatories were insufficiently answered, the information sought therein was not provided via defendant's use of interrogatories. Thus, this Court holds, that defendant is entitled to a deposition because “the device first chosen does not adequately disclose all evidence material and necessary to the prosecution or defense of the action (Katz at 775).
Motion to Strike the Complaint
Defendants' motion seeking to strike the complaint based on plaintiff's failure to provide proper responses to defendant's interrogatories and for plaintiff's failure to appear at a deposition, is denied insofar as this Court holds that plaintiff's conduct was neither willful nor contumacious a matter of law, thereby, precluding relief pursuant to CPLR § 3126
“The purpose of disclosure procedures is to advance the function of a trial, to ascertain truth and to accelerate the disposition of suits” (Rios v Donovan, 21 AD2d 409, 411 [1st Dept. 1964]). Accordingly, our courts possess wide discretion to decide whether information sought is “material and necessary” to the prosecution or defense of an action (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 ). The terms
material and necessary, are, in our view, to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason. CPLR 3101 (subd. [a] ) should be construed, as the leading text on practice puts it, to permit discovery of testimony which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable
(id. at 406 [internal quotation marks omitted] ). Whether information is discoverable does not hinge on whether the information sought is admissible and information is therefore discoverable merely if it “may lead to the disclosure of admissible proof” (Twenty Four Hour Fuel Oil Corp. v Hunter Ambulance, 226 AD2d 175, 175 [1st Dept 1996]). That said, however, “unlimited disclosure is not mandated, and the court may deny, limit, condition, or regulate the use of any disclosure device to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” (Diaz v City of New York, 117 AD3d 777, 777 [2d Dept 2014]). Thus, the trial court has broad discretion in determining the scope and breadth of discovery, must supervise disclosure and set reasonable terms and conditions therefor (id.). Absent an improvident exercise of discretion, the trial court's determinations should not be disturbed on appeal (id.).
Pursuant to CPLR § 3126
[i]f any party, or a person ․ refuses to obey an order for disclosure or wilfully 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 ․ 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 ․ an order striking out pleadings or parts thereof.
It is well settled that “[t]he nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court's discretion” (Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 738 [2d Dept 2012]). Striking a party's pleading for failure to provide discovery, however, is an extreme sanction, and warranted only when the failure to disclose is willful and contumacious (Bako v V.T. Trucking Co., 143 AD2d 561, 561 [1st Dept 1999]). Similarly, since the discovery sanction imposed must be commensurate with the disobedience it is designed to punish, the less drastic sanction of preclusion is also only appropriate when there is a clear showing that a party has willfully and contumaciously failed to comply with court-ordered discovery (Zakhido at 739; Assael v Metropolitan Transit Authority, 4 AD3d 443, 444 [2d Dept 2004]; Pryzant v City of New York, 300 AD2d 383, 383 [2d Dept 2002]). Willful and contumacious behavior can be readily inferred upon a party's repeated non-compliance with court orders mandating discovery (Pryzant at 383). When a party adopts a pattern of willful non-compliance with discovery demands (Gutierrez v Bernard, 267 AD2d 65, 66 [1st Dept 1999]) and repeatedly violates discovery orders, thereby delaying the discovery process, the striking of pleadings is warranted (Moog v City of New York, 30 AD3d 490, 491 [2d Dept 2006]; Helms v Gangemi, 265 AD2d 203, 204 [1st Dept 1999]). Stated differently, discovery sanctions should ensue when there is a willful failure to “disclose information that the court has found should have been disclosed” (Byam v City of New York, 68 AD3d 798, 801 [2d Dept 2009]).
Where the failure to disclose is neither willful nor contumacious, and instead constitutes a single instance of non-compliance for which a reasonable excuse is proffered, the extreme sanction of striking of a party's pleading is unwarranted (Palmenta v. Columbia University, 266 AD2d 90, 91 [1st Dept 1999]). Nor is the striking of a party's pleading warranted merely by virtue of “imperfect compliance with discovery demands” (Commerce & Industry Insurance Company v Lib-Com, Ltd, 266 AD2d 142, 144 [1st Dept 1999])
A review of the relevant evidence submitted by defendant and discussed above, establishes that with regard to the interrogatories, plaintiff provided a response in 2018, which apparently was provided in error. Plaintiff then provided responses responsive to the defendant's interrogatories, which this Court holds were deficient insofar as they were not sworn and the responses were provided by counsel. With regard to the deposition, contrary to plaintiff's contention, generally a defendant has the right to depose plaintiff (CPLR § 3109 [“A party desiring to take the deposition of any person upon written questions shall serve such questions upon each party together with a notice stating the name and address of the person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs, and the name or descriptive title and address of the officer before whom the deposition is to be taken.”] ). Moreover, as discussed above, here, where defendant's interrogatories have yielded incomplete information, nothing in our jurisprudence bars the deposition sought by defendant.
The foregoing, specifically, plaintiff's refusal to submit to a deposition does not demonstrate that plaintiff's noncompliance has been willful or contumacious. To be sure, here, there has been no transgression of a court order mandating the discovery sought. Indeed, the record is bereft of any repeated yet fruitless effort by defendant to obtain the discovery sought. Notably, when plaintiff became aware that it had erroneously responded to defendant's demand, it provided a more appropriate response, albeit one which this Court deems defective. Again, it is well settled that “striking a party's pleading for failure to provide discovery is an extreme sanction [and] it is only warranted when the failure to disclose is willful and contumacious” (Bako at 561). Generally, willful and contumacious behavior can be readily inferred upon a party's repeated non-compliance with court orders mandating discovery (Pryzant at 383), and only when a party adopts a pattern of willful non-compliance with discovery demands (Gutierrez at 66) and repeatedly violates discovery orders, thereby delaying the discovery process, is the striking of pleadings warranted (Moog at 491; Helms at 204). Nor is the striking of a party's pleadings warranted merely by virtue of “imperfect compliance with discovery demands” (Commerce & Industry Insurance Company at 144).
Motion to Compel Discovery
Defendant's motion to compel a further response to its interrogatories and to compel plaintiff to appear for a deposition is granted. As noted above, defendant has demonstrated that the response to its interrogatories is deficient and that it is entitled to a deposition.
CPLR § 3124 allows a court to compel disclosure “[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question, or order.” Thus, when a party responds to discovery demands but provides inadequate responses, the proper remedy is a motion to compel pursuant to CPLR § 3124 as opposed to a motion to strike or preclude pursuant to CPLR § 3126 (Double Fortune Property Investors Corp. v Gordon, 55 AD3d 406, 407 [1st Dept 2008] [“Plaintiff having responded to defendant's discovery requests, the proper course for defendant, rather than moving to strike the complaint pursuant to CPLR 3126, was first to move to compel further discovery pursuant to CPLR 3124.”] ).
Here, contrary to plaintiff's contention, it provided an inadequate response to defendant's interrogatories and has failed to appear for a deposition to which defendant is entitled. Accordingly, this Court holds that pursuant to CPLR § 3124, plaintiff must provide the discovery sought. It is hereby
ORDERED that the Clerk vacate the Notice of Trial. It is further
ORDERED that plaintiff provide a further response to defendant's Interrogatories consistent with this Court's Decision and Order within 60 (sixty) days 3 of service of this Decision and Order upon it with Notice of Entry. It is further
ORDERED that plaintiff appear for a deposition at a date and time mutually convenient to all parties within 90 (ninety) days of service of this Decision and Order upon it with Notice of Entry. It is further
ORDERED that defendants serve a copy of this Decision and Order with Notice of Entry upon plaintiff within thirty (30) days hereof.
This constitutes this Court's decision and Order.
1. Notably, in its motion, defendant also asserts that plaintiff improperly objected to several questions within the interrogatories. However, defendant's wholesale failure to articulate why the objections were improper precludes this Court from ruling on that portion of the motion.
2. General construction Law § 25-a states that “[w]hen any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day and if the period ends at a specified hour, such act may be done at or before the same hour of such next succeeding business day”)
3. Because we are in the midst of the Covid 19 Pandemic with all of the attendant disruptions to people's lives and indeed the Court System, the time periods for compliance with this Court's directives must necessarily be long.
Fidel E. Gomez, J.
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