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Watson v. City of New York

Supreme Court of New York, First Department

January 16, 2018

Joshua Watson, Plaintiff-Respondent,
v.
The City of New York, et al., Defendants-Appellants.

          Zachary W. Carter, Corporation Counsel, New York (Elina Druker of counsel), for appellants.

          Rubert & Gross, P.C., New York (Soledad Rubert of counsel), for respondent.

          Friedman, J.P., Webber, Gesmer, Kern, Oing, JJ.

         Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 26, 2014 which, to the extent appealed from as limited by the briefs, granted plaintiff's motion to strike the City defendants' answer, and denied their motion for a protective order, and order, same Court and Justice, entered December 1, 2015, which, to the extent appealed from as limited by the briefs, denied defendant Frank Diaz's motion to vacate the default judgment against him and to compel acceptance of the second amended answer, and granted plaintiff's cross motion for monetary sanctions against defendants, modified, on the law, to grant Diaz's motion to vacate the default judgment and to compel acceptance of the second amended answer, and to deny plaintiff's cross motion for monetary sanctions, and otherwise affirmed, without costs.

         In 2010, plaintiff commenced this action for false arrest and malicious prosecution against the City of New York, the police detective who arrested him, the District Attorney, an assistant district attorney of Bronx County (hereinafter referred to as the City defendants) and Frank Diaz (Diaz), the other arresting police detective. The City defendants interposed a timely answer but did not include Diaz.

         On November 24, 2010, the motion court granted plaintiff's motion for a default judgment against Diaz for failing to file a timely answer as the City defendants' original answer and first amended answer did not include Diaz. On December 2, 2010, the City defendants served a second amended answer that included Diaz.

         On appeal, Diaz raises a new argument not made below, that the default judgment against him is a nullity because his time to answer had not yet expired when the motion court granted the default judgment against him. Specifically, Diaz argues that the affidavit of service, which affirms that service was made on Diaz on September 29, 2010 pursuant to CPLR 308(2), was not filed until October 18, 2010, and that he had until November 29, 2010 to timely answer the complaint.

         Although an argument not raised before the motion court ordinarily may not be asserted on appeal, where "a party does not allege new facts, but, rather, raises a legal argument which appeared upon the face of the record and which could not have been avoided...if brought to [his or her] attention at the proper juncture, " such argument may be raised for the first time on appeal (Gerdowsky v Crain's N.Y. Bus., 188 A.D.2d 93, 97 [1st Dept 1993] [internal quotation marks omitted]). Where a party raises a legal argument for the first time on appeal, as long as the issue is determinative and the record on appeal is sufficient to permit review, this Court may consider the new argument (Vanship Holdings Ltd. v Energy Infrastructure Acquisition Corp., 65 A.D.3d 405, 408 [1st Dept 2009]; see also U.S. Bank N.A. v DLJ Mtge. Capital, Inc., 146 A.D.3d 603, 603 [1st Dept 2017] [declining to consider party's new theory, raised for the first time on appeal, which was "not a purely legal argument"]). Further, where a default judgment is entered prematurely because the time to answer has not expired, the judgment is a nullity and must be vacated (see Dunn v Burns, 42 A.D.3d 884, 886 [4th Dept 2007]).

         CPLR 308(2) states that service thereunder is not complete until 10 days after the filing of the affidavit of service. CPLR 320 provides that when service is made pursuant to CPLR 308(2), the defendant has 30 days from the time service is complete to answer the complaint.

         Here, Diaz's nullity argument may be considered by this Court as it is a purely legal argument and the record on appeal is sufficient to permit review. The record contains a copy of plaintiff's affidavit of service, which plainly states on the first line: "FILED Oct 18 2010 Bronx County Clerk." Thus, service upon Diaz was not complete until October 28, 2010, 10 days after the affidavit of service was filed. Diaz then had 30 days, exclusive of the two holidays during that period, to answer the complaint, i.e., November 29, 2010. The motion court's granting of plaintiff's motion for a default judgment on November 24, 2010 was premature as it was five days before Diaz's time to answer would have expired. Accordingly, the default judgment entered against Diaz should be vacated and plaintiff is directed to accept the City defendants' second amended answer.

         We turn now to the more substantive issue of whether this Court should affirm the motion court's decision to strike the City defendants' answer. There is agreement that the City defendants' handling of the pretrial proceedings was deficient. Where we part company with the dissent is the proper sanction for such clear disregard of judicial proceedings and court orders. The dissent takes the position that a monetary sanction would be sufficient. We respectfully disagree.

         Pursuant to CPLR 3126, "[i]f any party... refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed, pursuant to this article, the court may make such orders with regard to the failure or refusal as are just." This Court has long held that "the drastic remedy of striking a party's pleading pursuant to CPLR 3126 for failure to comply with a discovery order... is appropriate only where the moving party conclusively demonstrates that the non-disclosure was willful, contumacious or due to bad faith" (Henderson-Jones v City of New York, 87 A.D.3d 498');">87 A.D.3d 498, 504 [1st Dept 2011] [internal quotation marks omitted]). "Willful and contumacious behavior can be inferred by a failure to comply with court orders, in the absence of adequate excuses" (id.). Although actions should be resolved on the merits whenever possible, the efficient disposition of cases "is not promoted by permitting a party... to impose an undue burden on judicial resources to the detriment of... other litigants. Nor is the efficient disposition of the business before the courts advanced by undermining the authority of the trial court to supervise the parties who appear before it" (Arts4All, Ltd. v Hancock, 54 A.D.3d 286, 287 [1st Dept 2008], affd 12 N.Y.3d 846');">12 N.Y.3d 846 [2009], cert denied 559 U.S. 905');">559 U.S. 905 [2010]). "[I]t generally is within the discretion of the motion court to determine the appropriate penalty to be imposed against an offending party" and "[i]t would not be appropriate... for this Court to substitute its discretion for that of the Justice sitting in the IAS Court" (Spira v Antoine, 191 A.D.2d 219, 219 [1st Dept 1993]).

         Here, the motion court's finding that the City defendants' conduct was willful and contumacious is supported by the record and was a proper exercise of its discretion.

         On May 10, 2011, the motion court issued the preliminary conference order, which required the City defendants to provide various documents within 60 days. However, the City defendants failed to respond or provide any records whatsoever notwithstanding the preliminary conference order.

         Nearly a year later, on April 24, 2012, the motion court issued a second order requiring the City defendants to respond to the preliminary conference order and to produce "all documents held by the NYCPD" pertaining to this matter by June 1, 2012.

         On June 11, 2012, over a year after they were initially directed to do so, the City defendants served responses to the preliminary conference order but redacted certain material they alleged was privileged and confidential, including personal identifying information such as phone numbers, addresses, dates of birth and social security numbers for a police officer, the victim and a witness. However, the City defendants failed to provide a privilege log which is required under the discovery rules.

         In February 2013, plaintiff moved to compel the City defendants' compliance with the prior discovery orders. Based on the City defendants' substantial delay in complying with the preliminary conference order and their redaction of certain documents without providing a privilege log, on August 9, 2013, the motion court issued an order granting plaintiff's motion to compel and requiring the City defendants to disclose their entire file without redactions.

         After that order was issued, the City defendants could have sought to appeal the order or sought a protective order based on the assertion that the order required them to produce privileged and confidential information. However, they did nothing at all to challenge the order and did not even timely respond to the order.

         Four months after the August 9, 2013 order was issued, the City defendants still had not responded or provided plaintiff with the unredacted discovery. Thus, in December 2013, plaintiff moved to strike the City defendants' answer based on their failure to comply with multiple discovery orders.

         It was not until July 3, 2014, the return date of plaintiff's motion to strike, that the City defendants finally served plaintiff with their very delayed discovery response, which still included redactions and a privilege log. Such response was provided over three years after the City defendants were initially ordered to produce the discovery and nearly a year after the court ordered them to produce the discovery with no redactions.

         Additionally, at the same time, almost a year after the order was issued, the City defendants sought a protective order against the August 9, 2013 order arguing that the order required them to produce privileged and confidential information.

         Based on such dilatory conduct and the City defendants' failure to comply with multiple court orders, forcing the plaintiff to make multiple motions seeking discovery which the City defendants were ordered to produce years prior, the motion court properly exercised its discretion in striking the City ...


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