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Brutal discovery decision from the Appellate Term First DepartmentNovember 7, 2010

Michael Palmeri, M.D., PLLC v General Assur. Co., 2010 NY Slip Op 51879(U)(App. Term 1st Dept. 2010)

I am not even sure this is something you would even see out of the second department.  I am working off the assumption that there were no prior discovery applications in this matter; rather, this was the first discovery motion and it was either first time or second time the motion was on the calendar.

Here is the short discussion from the case:

“Defendant did not present a reasonable excuse for its failure to provide written responses to plaintiff’s disclosure requests or its failure to submit opposition papers to plaintiff’s motion to strike defendant’s answer pursuant to CPLR 3126. Therefore, Civil Court providently exercised its discretion in denying defendant’s motion to vacate a default judgment entered against it following its failure to oppose plaintiff’s motion to strike.

Even assuming that defendant’s argument regarding its request for an adjournment of plaintiff’s motion to strike is properly before us, Civil Court providently exercised its discretion in denying that request (see generally Santora & McKay v Mazzella, 211 AD2d 460, 462 [1995]).”

So this is what the court is telling me: (1) Make a discovery motion on every case; (2) Refuse to consent to any adjournments; (3) Force the court to write an order on all of these motions; and (4) Appeal every case where answering papers were not interposed and the court refuses to strike the complaint.

Query – can it now be argued that in a no-fault matter, it is an abuse of discretion not to strike a plaintiff’s complaint, where the ultimate sanction for failing to respond to a perfunctory disclosure motion is not granted?  Think about it.

7 Responses

  1. slick says:

    1st dept takes discovery seriously and always has.

    Based on the order, no one can determine how deserved the penalty was or how many adjournments were given.

    If you have a new strategy in mind, opposing adjournments usually doesnt pay off in the long run.

  2. SunTzu says:

    Responding to these statements:

    JT- “So this is what the court is telling me: (1) Make a discovery motion on every case; (2) Refuse to consent to any adjournments; (3) Force the court to write an order on all of these motions; and (4) Appeal every case where answering papers were not interposed and the court refuses to strike the complaint.”

    Slick- “Based on the order, no one can determine how deserved the penalty was or how many adjournments were given.”

    This was, indeed, the first time up on the motion to strike.

    However, facts are far removed from JT’s understanding. The Plaintiff attempted to stip it out using a standard form stip with preclusionary language. Counsel for the carrier refused to execute the stipulation, under the argument that she was under orders from her office not to execute a stipulate with preclusionary language. Counsel submitted no aff in opp, no discovery and still refused to stipulate. She, in effect, demanded that the Court merely adjourn the motion with no attendant obligation to produce the discovery. Thus, she demanded that everything be back to square one at the adjourned date, still no obligation to produce anything, with no excuse for the lack of production.

    Counsel and her firm played hardball for some God-foresaken reason and it blew up in their face. Playing hardball will only get our attention and piss us off. Court feels the same way, apparently.

    • JT says:

      Sun,

      I will not pass judgment on defense counsel’s actions in this case, except to say that you reap what you sow.

      One more question – how far was the return date from the service date of the motion?

  3. slick says:

    it may be dependent on the venue. in NY county, 1st-time on motions are granted an adjournment as a matter of course. I’m sure that BX practice is different.

    I wouldnt sign a conditional preclusion stip either unless there was no better option. Was there a prior order such as a PC or CC?

    • JT says:

      The rules for adjourning discovery motions depend on the county and really the type of case that is involved. It should not shock the reader of this blog that a discovery motion in a medical malpractice or complicated tort or contract case will be treated differently than a similar motion in a no-fault case.

      As you are aware, New York County follows the Supreme Court method of mandating disclosure conferences before a case may be certified for trial. In most of the other lower courts, there is no barrier to certifying a case for trial upon joinder of issue. This in turn causes firms to file the types of disclosure motions that are shunned upon in Supreme Court practice and New York County no-fault practice.

      I wish the lower courts would follow the New York County method, if only because it makes discovery more orderly and not a sword to non-suit someone. I am not alleging that Sun’s firm files discovery motions for the purpose of seeking to place defendant’s into substantive default. A discovery motion in the First Department, especially in response to Sun’s interrogatory #18, will allow the plaintiff to establish its prima facie case.

      My only gripe, again, is that there are many firms, both plaintiff and defendant, that use the discovery process as nothing more than a game. It is this practice that I find disturbing, and would compel me to take a hard line position to signing stipulations, similar to Defendant in this case. The only difference, of course, is that I would adequately answer the underlying discovery motion.

      Lastly, I can tell you that I personally do not file a Part 40 discovery motion unless there is something I need from Plaintiff. I disdain frivolous motion practice.

  4. SunTzu says:

    “I wouldnt sign a conditional preclusion stip either unless there was no better option. Was there a prior order such as a PC or CC?”

    Well, if the Court gave you the option, of course you would not. If you are given the opportunity for a “do over” with no consequences, you take it, especially if you really don’t want to provide discovery in the first instance.

    There was no prior order in this case. The return date was “only” about 2-4 months after service/submission of the motion. However, when the carrier moved to vacate the default/reargue/renew (forget which), it failed even at that point to provide discovery or provide admissible proof justifying the failure to produce. In fact, over the course of years, the Appellant never addressed this failure.

    It’s important to stress that counsel failed to provide any excuse for delaying production at the hearing at issue. She merely refused to stipulate because she was ordered by her office not to.

    This Bronx Civ Court does not provide automatic adjournments on discovery motions. It’s up to the Court on a case by case basis.

    However, I don’t think you will run into this sort of trouble unless you (1) provide no excuse for lack of production, even a hearsay excuse presented orally to the Court; and (2) outright refuse to stipulate to produce the discovery at a later date under the argument “my office will not let me so stipulate.”

    The only conclusion the court was left with was either that the carrier was outright stonewalling, or simply desiring to waste everyone’s time.

    As a little background, by information and belief, there are docs in the carrier’s possession that refute its denial– documents produced by the carrier’s own experts. The carrier was likely faced with the dilemma of either withholding discovery and lying about that– probably not the best thing to do against us– or exposing their defense as contrived. So there was likely a wise basis for the firm’s refusal to stipulate, as there was a wise basis for the Court’s ruling.

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