4, 5, 6 Filed Papers: Claim, Answer, Order in Motion No. M-64602
Upon the foregoing papers, this motion is granted to the extent noted.
Claimant makes this motion for what he terms the Defendant's "default of
compliance with judgment", seeking to hold the Defendant in contempt. Claimant
complains of the Defendant's deliberate and willful refusal and/or willful
failure to comply and its defiance of this court's order of judgment (sic) dated
September 24, 2002, which required compliance with directives which I imposed,
relating specifically to certain discovery demands made by Claimant.
The aforementioned order in Motion No. M- 64602, dated September 24, 2002, was
filed on October 10, 2002, and required Defendant to serve responses to
specified discovery demands by November 1, 2002. The history of Claimant's
attempts to obtain disclosure, including extensive motion practice, and the
Defendant's tardy and totally unsatisfactory responses (when there were
responses at all), is painfully reiterated in that order. I will not repeat the
litany of the Defendant's continued disregard of demands, notices, court orders,
etc., but will refer any appellate court reviewing this order to my earlier
order in Motion No. M-64602, a copy of which is attached hereto and made a part
hereof. That order speaks for itself, but it was unmistakably clear about the
consequences for the Defendant's noncompliance with that order, to wit, "If
Claimant is forced to bring yet another motion to obtain these materials, I
would look favorably on a new motion to consider the imposition of
That foreboding did nothing to inspire the Defendant's compliance. Claimant
was forced to bring this motion, serving it on December 5, 2002, seeking what
could be characterized as a default judgment (see CPLR 3126), but in reality
seeking any appropriate available remedies under CPLR 3126. This motion was
filed on December 11, 2002 and was returnable on January 15, 2003. One might
have thought that the additional period of time, between service of this motion
and its return date more than one month later, provided yet another golden
opportunity for Defendant to properly comply. The Defendant did nothing.
Indeed it was only on the very return date of this motion that the Defendant
made another belated request for additional time to comply, with the empty
promise of yet another future intention to comply. Frankly, the Defendant has
little if any credibility before this Court as these unfulfilled assurances have
been made before.
This continuing pattern of noncompliance cannot be countenanced. First, I am
aware that copies of certain, but not all, of Claimant's ambulatory health
records were mailed to Claimant by Defendant's letter dated January 17, 2003,
with the promise that additional materials and current ambulatory health records
would be forthcoming at some vague and unspecific time in the future, to wit,
whenever Defendant's counsel receives copies of the same.
The Fourth Department has held that "[w]hile ‘the harsh remedy of
striking an answer should be granted only where it is conclusively shown that
the discovery default was deliberate or contumacious' (citations omitted),
‘it is equally well settled that where a party disobeys a court order, and
by his or her conduct frustrates the disclosure scheme provided by the CPLR,
dismissal of a pleading is within the broad discretion of the trial court'
(citations omitted)" (Paull v First UNUM Life Ins. Co., 267 AD2d 970).
"Willfulness may be inferred when a party repeatedly does not respond to demands
for discovery, or to comply with discovery orders and is unable to proffer an
adequate excuse for such defaults" (Weinstein-Korn-Miller, § 3126.10, p
CPLR 3126 provides for sanctions ranging from granting a judgment by default,
to striking a pleading or imposing a fine upon the litigant or the attorney,
where the party refused to obey an order of disclosure or wilfully failed to
disclose information. While the Defendant's actions are indefensible, a
judgment by default is not an appropriate remedy as Court of Claims Act
§12(1) provides in essence that no judgment shall be granted against the
state without "such legal evidence as would establish liability against an
individual or corporation in a court of law or equity."
Instead, the Defendant's answer is stricken. While the absence of an answer
will deprive the State of the right to defend on the issue of liability, "[t]he
result is that this claim must be tried, . . . and claimant will
have to submit such evidence as will establish a prima facie case. At such
trial, defendant shall be precluded from offering any evidence, testimonial or
documentary, on the issue of liability, but it will be allowed to cross-examine
claimant's witnesses. The conduct of defendant's case with respect to damages
is unaffected by this decision" (Gibson v State of New York, O'Rourke,
J., December 20, 2000, UID No. 2000-017-611,
Claimant of course is still entitled to receipt of those items specified in my
prior orders, and the Defendant remains under a continuing duty to provide the
same. Defendant is directed to provide written notice to the Court of the
status of the outstanding demands, with copies of such correspondence sent
contemporaneously to the Claimant. I will expect written correspondence from
the Defendant dated by the first day of every month, starting on March 1, 2003,
describing the status of such outstanding demands, until such time as full
compliance has been accomplished.
The motion is granted to the extent that the answer is stricken.