An angry Appellate Division strikes a complaint based upon discovery violationsJune 14, 2009

Northfield Ins. Co. v Model Towing & Recovery
2009 NY Slip Op 04878 (2d Dept 2009).

While this case represents nothing unique, the path the Appellate Division took was. The facts, as relayed to the reader, are that the following discovery orders were in place and in some way were violated:

1. Preliminary conference (7/28/05)- discovery was ordered to be completed prior to the Compliance Conference (12/19/06) .

2. Compliance conference (12/19/06) – discovery was ordered to be completed by 2/14/07.

3. There were various status conferences in between the dates of 2/14/07 and 12/12/07.

4. At the 12/12/07 status conference, discovery was ordered to be completed on or before 1/16/08.

5. Discovery was not completed on 1/16/08 .

6. A motion was interposed based upon the failure to comply with the 1/16/08 order. The Court in this order set forth a discovery schedule, and stated that it was to be obeyed under penalty of a 3126 remedy, upon a subsequent motion. In English, it looked as if the violation of this order would result in a conditional order of preclusion or a conditional order of dismissal.

Excluding status conferences and the P.C. order, there were 2 orders. Moreover, only one resulting order was the result of a motion made on notice.

The Defendant appealed the 1/16/08 order on the basis that the Court should have stricken the complaint. What happened next is something that is very rarely seen in downstate New York practice: The Appellate Division reversed the order of Supreme Court and struck the complaint.

Now for those of us who have practiced in Supreme Kings (my favorite example) as defendants and have had the opportunity to make discovery based motions in CCP, you will observe that it is almost impossible to obtain an order containing conditional preclusion or dismissal language, let alone an order that will unconditionally strike the complaint. Almost 10 discovery orders can be violated and a conditional order of dismissal, conditional order of preclusion or an absolute order of preclusion or dismissal will never occur. That is life, and we accept it because when these orders get appealed, the Appellate Division will usually not find an abuse of discretion and affirm the order of the Supreme Court, with the Defendant paying one bill of costs and disbursements to the recalcitrant Plaintiff.

Here, there were 3 disobeyed orders (including the P.C. order) and some status conferences that appeared to be disregarded. The Appellate Division, on appeal, reversed Supreme Court and struck the complaint. Since the SOL probably expired, the dismissal order was with prejudice. My question is as follows: are we going to see this type of vigilance in other cases, or is this case just an anomaly?