United States District Court, Southern District of New York
March 26, 2003
SAM J. KALISH, PLAINTIFF, AGAINST THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT, MAYOR RUDOLPH GIULIANI, THE CIVILIAN COMPLAINT REVIEW BOARD, COMMISSIONER FRANK WOHL, EXECUTIVE DIRECTOR GENE LOPEZ, COMMISSIONER HOWARD SAFIR, CAPTAIN O'BRIEN, LIEUTENANT WALTER PEYTON, P.O. JAMES BOYLE, P.O. RUSSO, DEFENDANTS.
The opinion of the court was delivered by: Thomas P. Griesa, United States District Judge.
This pro se action was commenced in July 1999. Plaintiff alleges that he and his daughter, Barbara Morse, were subjected to improper actions of the New York City Police in certain incidents occurring in 1996.
In addition to the defendants named in the above caption, the complaint originally named as a defendant the Patrolman's Benevolent Association. The PBA moved to dismiss, and that motion was granted on September 7, 2000.
On April 26, 2002 the remaining defendants filed a motion to dismiss the action as against them for failure to prosecute. The essence of the motion is that plaintiff has failed to comply with legitimate discovery requests, and also with two discovery orders that expressly warned plaintiff that the action would be dismissed if he failed to furnish the required discovery. Plaintiff has filed papers in opposition.
The motion is granted and the action is dismissed as to all remaining defendants.
On February 2, 2000 and again on March 2, 2000 defendants served plaintiff with defendants' First Set of Interrogatories and Request for Production of Documents. Plaintiff has never responded, except for production of extraneous medical documents having no bearing on the present case.
Defense counsel sent plaintiff letters dated January 21, January 27 and February 3, 2000 requesting that plaintiff execute releases necessary for defense counsel to obtain his criminal records and medical records. Defense counsel sent his daughter, Barbara Morse, who has power of attorney for plaintiff, a similar letter dated March 2, 2000. These requests were entirely legitimate. On April 12, 2000 the court ordered plaintiff to execute and return the releases to defense counsel no later than May 22, 2000. The order also directed plaintiff to provide his current mailing address and telephone number. The order stated that the action would be dismissed if plaintiff did not comply.
The direction regarding the current mailing address and telephone number related to the fact that plaintiff lives six months of the year in New York City and six months in Florida. Although the complaint refers to plaintiffs New York City address, it was necessary for defense counsel to have the information about plaintiffs residence in Florida, since plaintiff was bringing the action on his own behalf and defense counsel was not obliged to lose track of plaintiff for six months of the year.
On April 14, 2000 the court received a letter from Morse purporting to respond on behalf of her father. However, Morse provided none of the information required, although she asserted that she had power of attorney for her father. On April 26, 2000 the court issued an order stating that, even though Morse might have such a power of attorney as she asserted, she could not stand in the place of her father as plaintiff. The order stated that all the directions contained in the prior order of April 12 remained in force and that plaintiff must comply with them. The order again warned that failure to comply would result in dismissal of the action.
Plaintiff has never complied with the direction to sign and return the releases for criminal court and medical records.
On April 5, April 19, May 18 and June 6, 2000 defense counsel telephoned Morse at plaintiffs New York residence, in attempts to obtain plaintiffs address and telephone number in Florida. On these occasions Morse refused to supply this information. Defense counsel did obtain plaintiffs Florida telephone number on November 1, 2000 when plaintiff called to say that he would not be attending to testify at a deposition that had been noticed. This leads to the subject of plaintiffs failure to comply with the requirement to give his deposition.
On May 18, 2000 defense counsel served a notice to take the deposition of plaintiff on June 15, 2000. Plaintiff did not appear. On October 11 plaintiff was served with a notice for taking his deposition on November 1, 2000. Plaintiff did not appear. He simply called defense counsel the morning of the scheduled deposition stating that he would not attend.
In his opposition to the current motion, plaintiff makes certain arguments, attempting to deal with the issues raised by the above circumstances. Plaintiff asserts that he was only obliged to provide one address and telephone number to defense counsel, obviously referring to his New York home. However, plaintiff asserts that in fact he communicated his Florida address and telephone number to defense counsel in a conversation of November 1, 2000. Defense counsel states that she has never received the Florida address. The court credits defense counsel.
The issue regarding plaintiffs Florida address and telephone number is of consequence, as indicated earlier. Since plaintiff is pro se, defense counsel was entitled to know at all times where he could be served promptly by mail and where he could be reached by telephone. This was the reason for the court's order of April 12, 2000. It has never been fully complied. with.
As to the releases for criminal court and medical records, plaintiffs opposition to the present motion contains certain evasive arguments that do not meet the issue. Plaintiff has asserted no excuse with regard to the interrogatories and document requests. As to the deposition, plaintiffs opposition to the current motion presents no credible or sufficient excuse for failing to appear on the noticed dates or at least to request adjournment in some reasonable fashion. In his opposition to the motion, plaintiff expresses willingness to appear but this is belated in the extreme.
The record is one of willful disregard of discovery requirements and court orders. Certain of the discovery demands became the subject of court orders with specific warnings of dismissal in the event of noncompliance. As to certain other discovery demands, defense counsel did not obtain such orders. But plaintiffs failure to comply, in all cases, was deliberate and prolonged, involving numerous opportunities to cure the defaults.
The Corporation Counsel's Office of the City of New York, which is representing the remaining defendants in this action, should not be required to expend its limited resources in dealing with a plaintiff who conducts himself in this fashion. This is particularly true in view of the very marginal nature of plaintiffs claims in this case. As shown by a decision of this court in the present case, Kalish v. City of New York, et al., No. 99 Civ. 5895 (S.D.N.Y. Sept. 7, 2000), dismissing one of the defendants, and as further shown by a decision of the court in a companion case brought by plaintiffs daughter, Morse v. City of New York, et al., No. 00 Civ. 2528 (S.D.N.Y. Aug. 23, 2001), the case arises from a minor dispute between plaintiff and his daughter on the one hand, and certain New York City police officers on the other, in which plaintiff and his daughter disobeyed legitimate directions of the police, finally resulting in the prosecution of the daughter for resisting arrest, after which she was convicted before a jury of that crime.
For the above reasons the action is dismissed as to all remaining defendants.
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