Preview
INDEX NO. 151998/2014
(FILED: NEW YORK COUNTY CLERK 0971172014 04:51 PM
NYSCEF DOC. NO. 19 RECEIVED NYSCEF 09/11/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
THORA CLAUDETTE CHALLENGER,
Index No.: 151998/14
Plaintiff,
-against-
GEORGE J. LAMADELEINE, J.B. HUNT
TRANSPORT, INC., ZEPHANIAH P. MULLIN, and
CHARLES S. GILES,
Defendants.
penne
nen n enn nee
MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANTS’ MOTION FOR DISMISSAL OF THE COMPLAINT
Of Counsel,
Robert A. Fitch
Anthony D. Luis, Esq
7693640-1
PRELIMINARY STATEMENT
This Court is respectfully referred to the Affirmation in Support of the Motion by
ANTHONY D. LUIS, Esq. and the exhibits annexed thereto, which are incorporated by
reference.
ARGUMENT
POINT I
DISMISSAL OF THE COMPLAINT PURSUANT TO
SECTION 3126 OF THE CPLR IS WARRANTED
The Court of Appeals affirmed the drastic remedy of dismissal of a party's claim because
plaintiff failed to comply with the Court Order, Kihl v. Pfeiffer, 94 N.Y.2d 118, 722 N.E.2d 55,
700 N.Y.S.2d 87 (1999). Most importantly, the Court reiterated the law with respect to failing to
comply with the Court Order:
When a party fails to comply with a Court Order and frustrates the
disclosure schemes set forth in the CPLR, it is well within the Trial
Judge's discretion to dismiss the complaint. Regrettably, it is not
only the law but also the scenario that is all too familiar.
If the credibility of Court Orders and the integrity of our judicial
system are to be maintained, a litigant cannot ignore Court Orders
with impunity. Jd., at 122.
The Court placed no conditions that were required to be met before a Trial Court could
impose such sanctions. Jd. In fact, rather than refer to prior cases which created a "willful,
contumacious or bad faith" standard before imposing sanctions, the Court of Appeals
pronounced simply and clearly that any failure to comply can be sanctioned. Jd.
Even absent a Court Order, as here, the severe remedy of dismissal can be granted when a
party "fails to disclose information which the Court finds ought to have been disclosed.”
Espinal vy. City of New York, 264 A.D.2d 806, 695 N.Y.S.2d 610 (2d Dep't 1999). In Espinal,
supra, the Appellate Division held that the Supreme Court improvidently exercised its discretion
in denying plaintiff's motion to strike defendant's answer since defendant failed to comply with
plaintiff's outstanding discovery demands and did not offer a reasonable excuse for their non-
compliance.
Moreover, even using the "willful, contumacious or bad faith" standard, plaintiffs
complaint should be dismissed because clearly the non-compliance with notices is willful,
contumacious and is undeniably in bad faith. See, Torres v. Martinez, 250 A.D.2d 759, 673
N.Y.S.2d 182 (2d Dep't 1998); Donovan v. City of New York, 239 A.D.2d 461, 657 N.Y.S.2d 451
(2d Dep't 1997); Herrera v. City of New York, 238 A.D.2d 475, 656 N.Y.S.2d 647 (2d Dep't
1997); Chambalero v. Waldbaum’s Supermarket, Inc., 250 A.D.2d 360, 672 N.Y.S.2d 318 (1st
Dep't 1998); Sluiter v. Garrison Protective Services, Inc., 235 A.D.2d 296, 653 N.Y.S.2d 3 (1st
Dep't 1997).
Indeed, a plaintiff's “willful, contumacious or bad faith" conduct may be manifested
as in the case sub judice or inferred by a culmination of plaintiff's conduct. See, Argenio v.
Cushman & Wakefield, Inc., 227 A.D.2d 578, 642 N.Y.S.2d 968 (2d Dep't 1996); Herzog v.
Progressive Equity Funding Corp., 199 A.D.2d 897, 606 N.Y.S.2d 101 (3d Dep't 1993). A
succession of failures to respond to a discovery demand constitutes the type of dilatory and
obstructive conduct which amounts to bad faith and which justifies the striking of plaintiff's
complaint. Ortiz v. Weaver, 188 A.D.2d 290, 590 N.Y.S.2d 474 (1st Dep't 1992).
Where, as here, plaintiff has offered no excuse for failure to comply with discovery
demands, and/or the court’s preliminary conference order the complaint should be dismissed and
judgment should be entered in favor of defendants. See, Argenio v. Cushman & Wakefield,
supra. Even where plaintiff eventually proffers some excuse for the delay, if the excuse is
proffered in a dilatory manner, it will be deemed an inadequate excuse. Hutson v. Allante
Carting Corp., 228 A.D.2d 303, 644 N.Y.S.2d 51 (st Dep't 1996).
Plaintiff's non-compliance with defendant, ALEX M. GREENBERG, D.D.S’s
discovery demands, notices, court orders and correspondence has been willful and contumacious.
Such willful and contumacious conduct is appropriately inferred by plaintiff's failure to provide
responses to demands. Good faith attempt by your affirmant to ensure compliance with notices
and demands has been for naught. Moreover, plaintiff has not offered any excuse whatsoever,
reasonable or otherwise, for failing to provide responses.
This Court has the discretionary judicial authority pursuant to Section 3126 of the
CPLR to dismiss plaintiff's complaint with prejudice and enter judgment in favor of ALEX M.
GREENBERG, D.D.S.
It is respectfully submitted that the facts of this case and plaintiff's conduct should
leave this Court no alternative but to exercise the full discretionary judicial authority provided
pursuant to Section 3126 of the CPLR and dismiss the Complaint with prejudice.
CONCLUSION
The Court should enter an Order dismissing the Complaint with prejudice and
directing that judgment be entered in favor of defendant ALEX M. GREENBERG, D.D.S. This
is warranted by the underlying facts, plaintiffs refusal to comply with discovery demands
despite your affirmant's good faith effort, and pursuant to Section 3126 of the CPLR and the case
law as cited in this memorandum of law.
Alternatively, it is respectfully requested that an Order be granted compelling
plaintiff to provide responses to discovery demands at a date and time certain.
Dated: New York, New York
September 10, 2014
Yours, etc.,
RAWLE & HENDERSON, LLP
Attorneys Defendant
GEORG LAMADELEINE
and J. NT TRANSPORT, INC.
By:
nt my D. Luis
14 all Street, 27" Floor
New York, New York 10005
Tel. No.: 1 (212) 323-7070
Our Reference No.: 802657
TO: LAW OFFICES OF ALEKSANDR VAKAREV
Attorneys for Plaintiff
2566 86th Street, Suite 1
Brooklyn, New York 11214
Telephone No.: 1 (718) 368-0690
Your File No.: 8644
ZEPHANIAH P. MULLIN
1901 Madison Avenue, Apt. 212
New York, New York 10035
CHARLES S. GILES
11 Fisher Court, Apt. 4C
White Plains, New York 10601
CHARLES S. GILES
350 Warwick Avenue
Mount Vernon, New York 10553
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INDEX NO. 151998/2014 (FILED: NEW YORK COUNTY CLERK 0971172014 04:51 PM NYSCEF DOC. NO. 19 RECEIVED NYSCEF 09/11/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK THORA CLAUDETTE CHALLENGER, Index No.: 151998/14 Plaintiff, -against- GEORGE J. LAMADELEINE, J.B. HUNT TRANSPORT, INC., ZEPHANIAH P. MULLIN, and CHARLES S. GILES, Defendants. penne nen n enn nee MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION FOR DISMISSAL OF THE COMPLAINT Of Counsel, Robert A. Fitch Anthony D. Luis, Esq 7693640-1 PRELIMINARY STATEMENT This Court is respectfully referred to the Affirmation in Support of the Motion by ANTHONY D. LUIS, Esq. and the exhibits annexed thereto, which are incorporated by reference. ARGUMENT POINT I DISMISSAL OF THE COMPLAINT PURSUANT TO SECTION 3126 OF THE CPLR IS WARRANTED The Court of Appeals affirmed the drastic remedy of dismissal of a party's claim because plaintiff failed to comply with the Court Order, Kihl v. Pfeiffer, 94 N.Y.2d 118, 722 N.E.2d 55, 700 N.Y.S.2d 87 (1999). Most importantly, the Court reiterated the law with respect to failing to comply with the Court Order: When a party fails to comply with a Court Order and frustrates the disclosure schemes set forth in the CPLR, it is well within the Trial Judge's discretion to dismiss the complaint. Regrettably, it is not only the law but also the scenario that is all too familiar. If the credibility of Court Orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore Court Orders with impunity. Jd., at 122. The Court placed no conditions that were required to be met before a Trial Court could impose such sanctions. Jd. In fact, rather than refer to prior cases which created a "willful, contumacious or bad faith" standard before imposing sanctions, the Court of Appeals pronounced simply and clearly that any failure to comply can be sanctioned. Jd. Even absent a Court Order, as here, the severe remedy of dismissal can be granted when a party "fails to disclose information which the Court finds ought to have been disclosed.” Espinal vy. City of New York, 264 A.D.2d 806, 695 N.Y.S.2d 610 (2d Dep't 1999). In Espinal, supra, the Appellate Division held that the Supreme Court improvidently exercised its discretion in denying plaintiff's motion to strike defendant's answer since defendant failed to comply with plaintiff's outstanding discovery demands and did not offer a reasonable excuse for their non- compliance. Moreover, even using the "willful, contumacious or bad faith" standard, plaintiffs complaint should be dismissed because clearly the non-compliance with notices is willful, contumacious and is undeniably in bad faith. See, Torres v. Martinez, 250 A.D.2d 759, 673 N.Y.S.2d 182 (2d Dep't 1998); Donovan v. City of New York, 239 A.D.2d 461, 657 N.Y.S.2d 451 (2d Dep't 1997); Herrera v. City of New York, 238 A.D.2d 475, 656 N.Y.S.2d 647 (2d Dep't 1997); Chambalero v. Waldbaum’s Supermarket, Inc., 250 A.D.2d 360, 672 N.Y.S.2d 318 (1st Dep't 1998); Sluiter v. Garrison Protective Services, Inc., 235 A.D.2d 296, 653 N.Y.S.2d 3 (1st Dep't 1997). Indeed, a plaintiff's “willful, contumacious or bad faith" conduct may be manifested as in the case sub judice or inferred by a culmination of plaintiff's conduct. See, Argenio v. Cushman & Wakefield, Inc., 227 A.D.2d 578, 642 N.Y.S.2d 968 (2d Dep't 1996); Herzog v. Progressive Equity Funding Corp., 199 A.D.2d 897, 606 N.Y.S.2d 101 (3d Dep't 1993). A succession of failures to respond to a discovery demand constitutes the type of dilatory and obstructive conduct which amounts to bad faith and which justifies the striking of plaintiff's complaint. Ortiz v. Weaver, 188 A.D.2d 290, 590 N.Y.S.2d 474 (1st Dep't 1992). Where, as here, plaintiff has offered no excuse for failure to comply with discovery demands, and/or the court’s preliminary conference order the complaint should be dismissed and judgment should be entered in favor of defendants. See, Argenio v. Cushman & Wakefield, supra. Even where plaintiff eventually proffers some excuse for the delay, if the excuse is proffered in a dilatory manner, it will be deemed an inadequate excuse. Hutson v. Allante Carting Corp., 228 A.D.2d 303, 644 N.Y.S.2d 51 (st Dep't 1996). Plaintiff's non-compliance with defendant, ALEX M. GREENBERG, D.D.S’s discovery demands, notices, court orders and correspondence has been willful and contumacious. Such willful and contumacious conduct is appropriately inferred by plaintiff's failure to provide responses to demands. Good faith attempt by your affirmant to ensure compliance with notices and demands has been for naught. Moreover, plaintiff has not offered any excuse whatsoever, reasonable or otherwise, for failing to provide responses. This Court has the discretionary judicial authority pursuant to Section 3126 of the CPLR to dismiss plaintiff's complaint with prejudice and enter judgment in favor of ALEX M. GREENBERG, D.D.S. It is respectfully submitted that the facts of this case and plaintiff's conduct should leave this Court no alternative but to exercise the full discretionary judicial authority provided pursuant to Section 3126 of the CPLR and dismiss the Complaint with prejudice. CONCLUSION The Court should enter an Order dismissing the Complaint with prejudice and directing that judgment be entered in favor of defendant ALEX M. GREENBERG, D.D.S. This is warranted by the underlying facts, plaintiffs refusal to comply with discovery demands despite your affirmant's good faith effort, and pursuant to Section 3126 of the CPLR and the case law as cited in this memorandum of law. Alternatively, it is respectfully requested that an Order be granted compelling plaintiff to provide responses to discovery demands at a date and time certain. Dated: New York, New York September 10, 2014 Yours, etc., RAWLE & HENDERSON, LLP Attorneys Defendant GEORG LAMADELEINE and J. NT TRANSPORT, INC. By: nt my D. Luis 14 all Street, 27" Floor New York, New York 10005 Tel. No.: 1 (212) 323-7070 Our Reference No.: 802657 TO: LAW OFFICES OF ALEKSANDR VAKAREV Attorneys for Plaintiff 2566 86th Street, Suite 1 Brooklyn, New York 11214 Telephone No.: 1 (718) 368-0690 Your File No.: 8644 ZEPHANIAH P. MULLIN 1901 Madison Avenue, Apt. 212 New York, New York 10035 CHARLES S. GILES 11 Fisher Court, Apt. 4C White Plains, New York 10601 CHARLES S. GILES 350 Warwick Avenue Mount Vernon, New York 10553