Eight (Years) is Enough — Plaintiff’s Delinquent Discovery Finally Prompts Dismissal (NY)

As every litigator is well aware, particularly in New York, the wheels of justice tends to turn slowly.  This concept was never more apparent than in the case of Harris v. Kay.  This 2019 First Department decision has a 2006 index number.  Plaintiff appealed from a 2017 order granting defendant’s motion to strike the complaint.  The Appellate Division found the trial court did not abuse its discretion in striking the complaint given plaintiff’s repeated, willful and contumacious refusals to provide discovery and comply with court orders over EIGHT years.

This decision goes to show the level of leniency courts grant plaintiffs before entertaining the sanction of dismissal.  Plaintiff’s response to defendants’ first set of interrogatories were served SIX years after the initial demands were made and the response failed to show a good-faith effort to address the requests meaningfully.  It is a point of great frustration for defendants when plaintiff’s initiate lawsuits and then fail to prosecute and it takes years of good faith letters and motion practice, only to get an inadequate response.  While this decision gives plaintiffs significant leeway, it is heartening to know there are limits to a court’s generosity.  Let’s hope more judges make the resolution to keep more stringent discovery schedules!

The salient point for defendants is simple — when plaintiffs fail to adhere to discovery orders, document those failures by publishing letters to the plaintiff.  The more failures documented, the more persuasive the eventual dismissal motion will be.  Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.

Plaintiff’s Claim Dismissed After Counsel Ignores Court Order (NY)

In Soto v Chelsea W26, LLC (2018 NY Slip Op 08170), the Appellate Division sent a message that cursory excuses for disregarding Court Orders or opposing motions will not be tolerated.

The plaintiff, Missael Soto, filed a lawsuit alleging violations of Labor Law §§ 240(1), 241(6), and 200, and common-law negligence. In April 2015, the defendants served an Answer and initial discovery demands.  In November 2015, a preliminary conference was held in Queens County Supreme Court, with an Order issued, directing the plaintiff to serve a Bill of Particulars within 30 days.  The plaintiff did not comply, and six months later, in May 2016, two separate Court Orders required the plaintiff to serve a Bill of Particulars and responses to the initial discovery demands on the defendants.

In June 2016, the defendants moved pursuant to CPLR 3126(3) to strike the complaint based upon the plaintiff’s failure to produce a Bill of Particulars and responses to the combined discovery demands. The plaintiff did not file any opposition to this motion.  As such, by Order entered November 7, 2016, the Supreme Court granted the defendants’ unopposed motion pursuant to CPLR 3126(3) to strike the Complaint.

Then, the plaintiff moved pursuant to CPLR 5015(a)(1) to vacate the Order striking the Complaint, arguing that a law office failure resulted in the per diem attorney hired to cover the motion appearance, failing to appear in Court. But the Supreme Court denied this motion, resulting in the plaintiff appealing this decision to the Appellate Division, Second Department.

The Appellate Division affirmed the denial.  To vacate an order, the plaintiff must 1) demonstrate both a reasonable excuse for the default and 2) a potentially meritorious opposition to the motion. The Appellate Division took issue with the first prong of this standard, the reasonable excuse.   Regardless of whether the firm’s per diem attorney appeared on the return date, the evidence submitted by the plaintiff in support of his motion demonstrates that the plaintiff’s attorney made a conscious decision to send a per diem attorney on the motion’s return date to attempt to resolve the motion by stipulation rather than file and serve any papers in opposition.  Plaintiff’s attorney’s decision not to oppose the motion constituted a strategy, not law office failure, and thus was not a reasonable excuse.  The Appellate Division affirmed the Supreme Court’s denial of plaintiff’s motion to vacate the Order striking the Complaint.  Thanks to George Parpas for his contribution to this post.  Please email Brian Gibbons with any questions.

Vague Discovery Responses Insufficient to Withstand Dismissal (NY)

One of the most important parts of our practice, especially in terms of litigation, is the receipt of discovery and providing discovery to our adversaries. Document and information exchange often leads to motion practice where a party refuses to provide certain documents and information or is delinquent in providing them.

More often than not, if a party can show that they have made efforts to respond, either by partial responses or correspondence, a Court will not grant a motion to dismiss for failure to provide discovery. Often, attorneys will provide just the bare minimum by way of a response but that will be sufficient to withstand the “willful and contumacious” standard of conduct which results in dismissal.

It appears, from the recent decision of the Appellate Division, Second Department, that bare minimum, nonspecific, or non-complete discovery responses may no longer be enough to withstand dismissal. In Corex v. Janel Group of New York, Inc., 2016-07342 (2d Dept. 2017), plaintiff was given a final deadline to provide specific responses to the defendants demands and sworn responses to interrogatories. The Order included language which directed dismissal of the claims if full and adequate discovery was not received.

At the zero hour, plaintiff electronically filed unsworn, unsigned and undated affidavits stating that documents and information were lost by a prior principal of the plaintiff company and as such proper responses could not be provided. The Court found that unsworn, unsigned and undated affidavits were insufficient to satisfy responses to the discovery demands or adequate excuse for failure to adequately respond. The Appellate Division concurred and found that the initial failure to respond per the Preliminary Conference Order and subsequent failure to provide responses with sufficient specificity warranted dismissal of the case.

This decision confirms a recent trend within the venues in which we practice where Court’s are cracking down on discovery disputes, delays in completing discovery and parties who willfully delay the progression of a case.  The scrutiny a Court applies to discovery non-compliance is like a pendulum, and recently in New York, the pendulum is swinging toward compliance.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Willful Disregard of So-Ordered Stipulation Results In Preclusion (NY)

The First Department recently struck the answers of the City of New York and Metropolitan Transportation Authority for ignoring multiple court orders and then producing a witness who was unable to answer questions at a deposition in McHugh v. City of New York.  The Court established defendants as automatically liable, with damages being the only remaining issue to be established.

McHugh arose in 2012, when plaintiff was injured while constructing the second Avenue Subway in Manhattan.  Plaintiff brought suit in 2014 against both the City and the MTA.  During the course of litigation, the defendants ignored two so-ordered-stipulations to produce a witness “with knowledge,”  so plaintiff moved to strike defendants’ answer.  After the Court order, defendants produced an employee who was “admittedly unprepared,” and could not answer any questions regarding the City and the MTA, or ownership of the tunnel and the ground on which it was built.

Defendants refused plaintiff’s demand to produce an additional witness.  In response, plaintiffs again moved to strike defendant’s answer. Although the lower Court denied plaintiff’s motion, on appeal, the appellate Court found that the trial court improvidently exercised its discretion in failing to strike defendants’ answers. The Court found that defendants’ noncompliance constituted “willfull and contumacious behavior, warranting the striking of their answer.”  The Court highlighted the fact that not only did the defendants fail to provide a timely response but also failed to address plaintiff’s requests meaningfully or with a good-faith effort.

As it goes without saying, the Court’s ruling demonstrates the extreme importance of not only selecting the right person for a deposition and sufficiently preparing that witness but of paying close attention to the course of litigation and being “reasonable” with the opposing counsel’s demands.  Playing “hardball” too often may have unintended and sometimes harsh consequences.  Thanks to Patrick Burns for his contribution to this post.  Please email Brian Gibbons with any questions.

Sometimes More is Less– Prisoner’s Subpoena is Quashed for Overbreadth (NY)

The Western District of NY recently quashed an inmate’s subpoena of two non-party witnesses in Cooper v. Hillin an attempt to obtain documentation of his own whereabouts during and after a prison riot.  The Court quashed his subpoena, finding his request was overbroad, seeking propensity evidence.

Cooper arose in 2012 when an inmate sued corrections officers and the Five Points Correctional Facility for assault, and for failing to provide him with medical treatment.  Cooper claims to have been assaulted by several corrections officers both during a prison riot in the recreational yard and a few hours later, in the prison showers.

During discovery, the Defendants’ incomplete documentation left a “gap” with regard to Cooper’s whereabouts for six hours after the prison riot ended including medical treatment records of that day.

In an attempt to clarify where Cooper was in the hours after the riot, Cooper subpoenaed documents including log sheets, grievance records, documents resulting from the intimate riot and “all internal investigations that occurred.”  The Correctional Facility moved to quash, citing that compliance with the subpoena would require thousands of documents, as the subpoenas also included phrases like “all documents from any person.”

The Court found the subpoena relevant, but nevertheless quashed it because it sought production of materials that did not pertain directly to Cooper’s whereabouts, and was out of proportion to their usefulness to Cooper’s claims.

The Court’s ruling demonstrates the extreme importance of properly tailoring subpoenas and  discovery requests in general.  In the event a subpoena results in motion practice, a properly tailored subpoena is much easier to defend before the court.  Thanks to Patrick Burns for his contribution to this post.  Please email Brian Gibbons with any questions.

Facebook Discovery Permitted in New York

Social network data is the new frontier of pre-trial discovery.  Our adversaries upload, download, tweet and post.  For some unexplained and seemingly generational reason, some people are almost compelled to share intimate details of their personal lives through their use Facebook, MySpace or Twitter.

The goal of obtaining Facebook data is easy to state but harder to implement.  The courts balance the need for material and relevant information of one party against the expectations of privacy of the other.

In D’Agnostino v. YRC Inc., the defendant developed a sound plan to obtain plaintiff’s social media postings.  Rather than serve an early document demand seeking all of the plaintiff’s Facebook postings, the defense attorney first deposed plaintiff and gained valuable admissions that plaintiff routinely posted concerns about her feelings and emotions both before and after her accident.  Once the trap was laid at plaintiff’s deposition, the defense attorney sprung into action and demanded all plaintiff’s social media postings and photographs concerning any mental, emotional or physical condition suffered by plaintiff regardless of whether posted by her or others before and after her accident.

In a well reasoned opinion, the court held that plaintiff put her physical and mental condition in issue when she filed her lawsuit. Further, plaintiff admitted that she routinely posted about her feeling and emotions on Facebook.  Accordingly, the court ruled that the defendant satisfied the two prong test for obtaining an opponent’s social media postings by: (1) specifically identifying what material was sought; and (2) establishing a factual predicate for seeking such evidence.

D’Agostino is hardly the last word on the discovery of social media postings in New York. It is an important lens into how the trial courts are dealing with discovery in this area and provides a practical roadmap to how a defense lawyer can lay the proper foundation to obtain this valuable discovery.

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