Watson v. City of New York

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, modi

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 AD2d 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 AD3d 405 , 408 [1st Dept 2009]; see also U.S. Bank N.A. v DLJ Mtge. Capital, Inc., 146 AD3d 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 AD3d 884 , 886 [4th Dept 2007]).

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 AD3d 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

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.

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 defendants’ answer and this Court will not substitute its discretion for that of the motion court.

The dissent contends that striking of the City defendants’ answer was not warranted because plaintiff was not prejudiced by defendants’ dilatory conduct. However, prejudice is not the standard by which a court determines whether to strike the answer of a party. Rather, the standard is whether the conduct of the offending party is willful, contumacious and in bad faith. Thus, even if plaintiff has not established prejudice, such factor is not dispositive here.

The dissent also contends that the motion court abused its discretion in striking the City defendants’ answer because the City defendants substantially complied with the discovery orders and that they acted in good faith in redacting privileged and confidential material. However, even if the August 9, 2013 order improperly ordered unredacted disclosure of privileged and confidential material and even if the motion court should have instead required an in camera inspection of the records to assess the redactions, the motion court still did not abuse its discretion in striking the City defendants’ answer. The City defendants could have appealed from the August 9, 2013 order to the extent they believed that it was issued in error or they

Although the dissent suggests that the City defendants’ dilatory behavior should be overlooked, it was within the discretion of the motion court to strike the City defendants’ answer based on the fact that the City defendants disobeyed multiple court orders. Indeed, this Court has consistently upheld the striking of the City’s answer under similar circumstances where the City disobeyed multiple court orders directing the production of discovery (see McHugh v City of New York, 150 AD3d 561 , 562 [1st Dept 2017] [“(t)he City’s . . . unexplained noncompliance with a series of court-ordered disclosure mandates over a period of nearly three years constituted willful and contumacious behavior, warranting the striking of (its) answer”]; see also Elias v City of New York, 87 AD3d 513 , 517 [1st Dept 2011] [holding that “the history of defendant’s untimely, unresponsive and lax approach to complying with the court’s previous orders warrants the striking of defendant’s answer”]; see also Henderson-Jones v City of New York, 87 AD3d at 504 [concluding that the City’s answer should have been stricken on the ground that striking the answer “serves the important function of deterring obstreperous litigation behavior” particularly where the City fails to comply with court-ordered deadlines]).

As this Court concludes that the motion court did not abuse its discretion in striking the City defendants’ answer based on their defiance of multiple court orders, we do not address the merits of the City defendants’ belated position that the August 9, 2013 order improperly required them to produce unredacted documents which would reveal information that should not be disclosed. We find, however, that an award of monetary sanctions is unwarranted. Concur—Gesmer, Kern and Oing, JJ.

dissent in part in a memorandum by Friedman, J.P., as follows: This is an action for malicious prosecution and false arrest, brought by a plaintiff who, although ultimately acquitted at trial, was indicted by a grand jury, based on eyewitness testimony, on a charge of attempted

On July 3, 2014, the date on which the parties appeared for oral argument of the motion to strike, defendants produced the documents called for by the August 2013 order. The July 3, 2014 production comprised 553 pages, with full or partial redactions of only 83 pages, as opposed to the 257 redacted pages of the June 11, 2012 production. In addition, defendants produced a detailed privilege log noting each redacted item and the asserted privilege. Defendants indicated that the redactions were of (1) personal and current cell phone numbers of current police officers, (2) social security numbers of nonparty witnesses, (3) HIPAA-protected material of the victim, and (4) work product of the District Attorney’s office. Defendants also disclosed the criminal histories of nonparty witnesses, which had previously been redacted.

At or about the time of their July 3, 2014 document production, defendants moved for a protective order, and for modification of the August 2013 order to preclude disclosure of work product of the District Attorney’s office. This motion was supported by an affidavit by an Assistant District Attorney averring that the redacted pages from the file of the District Attorney’s office contained work product not subject to disclosure. Defendants also brought an unredacted copy of their document production to the oral argument and offered it to the court for in camera inspection.

For reasons not germane to the merits of this appeal, upon

Remarkably, even as it affirms the imposition of such a harsh penalty against defendants, apparently based largely on defendants’ delays in responding to discovery demands and in moving for a protective order, the majority appears to concede that defendants’ delayed discovery responses did not cause any substantial prejudice to plaintiff. Specifically, rather than identify any substantial prejudice to plaintiff from defense counsel’s errors, the majority simply asserts that “prejudice is not the standard by which a court determines whether to strike the answer of a party.” The majority ignores the fact that less drastic penalties than the striking of a pleading are available to sanction an error by counsel that causes no prejudice to the opposing party.

Initially, the majority misstates the proper standard of review on this appeal. When reviewing discovery orders or other discretionary determinations, while we of course generally defer to the trial court’s exercise of its discretion, “the Appellate Division is vested with its own discretion and corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse” (Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843 , 845 [2008]; see also Andon v 302-304 Mott St. Assoc., 94 NY2d 740 , 745 [2000]; Small v Lorillard Tobacco Co., 94 NY2d 43 , 53-54 [1999] [“The Appellate Division, as a branch of

Second, regardless of any potential harm to innocent parties, defendants’ failures to provide a privilege log and an affidavit from an individual with personal knowledge as part of their June 11, 2012 production, while not to be condoned, did not justify deeming defendants to have effected a blanket waiver of any and all privileges, particularly in light of defendants’ efforts to note the asserted privilege on each page containing redactions. At a minimum, Supreme Court should have given defendants advance warning that failure to provide a privilege log and an affidavit with personal knowledge would constitute a blanket waiver of any and all privileges.

Third, as to defendants’ failure to move for a protective order, under the 1994 amendments to CPLR 3122 (as previously discussed), defendants were entitled to serve a production redacting privileged information without first moving for a protective order. The burden was then on plaintiff to move to compel unredacted disclosure, as plaintiff did (see Pyron, 256 AD2d at 204-205).

Finally, as also previously mentioned, the City’s failures to comply with CPLR 3122’s requirement to serve a notice stating its objections within 20 days did not waive its right to redact privileged or otherwise palpably improper disclosure (see Lea v New York City Tr. Auth., 57 AD3d 269 , 269 [1st Dept 2008] [“Concerning the demands that do remain in issue on appeal, they are all palpably improper . . . , and thus production thereof should not be compelled despite defendant’s failure to

In support of its finding that defendants’ delays, and their lack of full compliance with the clearly erroneous August 2013 order, amount to conduct so willful and contumacious as to justify striking their answer, the majority cites to three of our precedents (McHugh v City of New York, 150 AD3d 561 [1st Dept 2017]; Elias v City of New York, 87 AD3d 513 [1st Dept 2011]; Henderson-Jones v City of New York, 87 AD3d 498 [1st Dept 2011]). While I agree that defense counsel’s handling of this matter leaves much to be desired (particularly, the failures to respond to plaintiff’s discovery demands and to seek an appropriate protective order in timely fashion), this case law simply does not support striking defendants’ answer based on the deficiencies of their counsel’s handling of discovery appearing from this record. To the contrary, a review of the relevant case law makes it plain that the conduct at issue here, even though deserving of a penalty, does not warrant the drastic sanction of the striking of their answer—in effect, granting plaintiff judgment as to liability without the trouble and inconvenience of having to prove a case.

With regard to the untimeliness of defendants’ discovery responses, it is well established that mere delay in responding to discovery requests does not justify the extreme sanction of striking an answer. Applicable here is the following statement we made in an earlier case presenting a similar issue: “Defendants’ behavior in this matter cannot be excused. Their exhibited pattern of noncompliance and their failure to account for their actions over a period of a year and a half warrant a penalty pursuant to CPLR 3126 .... While the conduct of defendants here was unsupportable, we cannot find that it rose to the level that would justify striking the answer” (De Socio v 136 E. 56th St. Owners, Inc., 74 AD3d 606 , 608 [1st Dept 2010] [brackets omitted]; see also Viruet v Mount Sinai Med. Ctr. Inc., 143 AD3d 558 [1st Dept 2016]; Banner v New York City Hous. Auth., 73 AD3d 502 [1st Dept 2010]). Here, defendants’ counsel was certainly remiss in failing to move in a timely fashion for a

Nor, under these circumstances, was defendants’ redaction of 83 pages out of the 553-page production they made on July 3, 2014, so willful and contumacious as to justify striking their answer. The aforementioned three cases cited by the majority do not hold otherwise and are, in any event, readily distinguishable. In McHugh v City of New York, we held it was appropriate to strike the defendants’ answer after the defendants violated five discovery orders ordering them to produce a witness for deposition, and upon finally producing a witness, produced an admittedly unprepared witness who was unable to provide any relevant testimony ( 150 AD3d at 562 ). Under even more extreme facts, in Elias v City of New York, we ordered the defendant’s answer to be stricken after the defendant had previously been sanctioned by this Court for failure to comply with its discovery obligations, and had additionally failed to comply with nine of Supreme Court’s orders (87 AD3d at 517). Finally, in Hender son-Jones v City of New York, we reversed Supreme Court and granted the plaintiff’s motion to strike the defendants’ answer based upon our finding that the “defendants failed to demonstrate that they even attempted to comply with their discovery obligations” merely to identify the police officers involved in the subject incident, and that their efforts were so “lacking in diligence that it is hard to characterize them as anything other than willfully designed to thwart plaintiff” (87 AD3d at 505).

Here, unlike the defendants in McHugh and Elias, who respectively violated five and nine discovery orders, defendants in this case were merely untimely on two occasions, neither of which prejudiced plaintiff. Unlike the defendants in Henderson-Jones, who did not even attempt to comply with their discovery obligations, defendants in this case went to considerable lengths to comply with the August 2013 order. Defendants

Above all, McHugh, Elias or Henderson-Jones are inapposite because there is no indication that the defendants’ answers were stricken in those cases based on failures to disclose privileged information, the disclosure of which would pose risks to private citizens, and which had no relevance to the merits of the action. Unlike the three cases relied upon by the majority, in this case the primary error of defendants’ counsel was in being late to take steps to exclude privileged and sensitive information from the scope of the disclosure process, in which such information plainly did not belong. In particular, defendants’ failure to disclose identifying information of police officers or private citizens, even if the court had—plainly, in error— directed such disclosure, cannot be characterized as “cavalier noncompliance” (Elias, 87 AD3d at 517) that warrants the striking of a pleading.

Finally, the majority is correct in pointing out that, once the concededly erroneous August 2013 order was issued, rather than simply fail to comply with it to the extent it was in error, defendants’ counsel should have sought immediate judicial relief from it. Specifically, defendants should have moved for a protective order before the deadline for production set by the order and, given the interests at stake, they should also have filed an appeal and made an application for interim relief from this Court. Defense counsel plainly erred in unilaterally failing to comply fully with the August 2013 order, erroneous though it was, and I agree that defendants must be penalized for this error of their counsel. But I do not agree that, in determining the penalty, we must ignore the serious—and dangerous—error that tainted the August 2013 order in the first place, or the lack of prejudice to plaintiff from defendants’ failure to produce irrelevant information to which he was not entitled. Under these particular circumstances, I believe that the penalty of striking defendants’ answer—thereby granting plaintiff judgment as to liability when he has not proved his case—is far too drastic, and its imposition constitutes an abuse of discretion.

For all of the foregoing reasons, I believe that we should modify the orders appealed from to reinstate defendants’ answer—whether as a correction of an abuse of Supreme Court’s discretion or as a substitution of this Court’s own discretion for an improvident exercise of discretion by Supreme Court—and that we should affirm the imposition of the monetary sanction. To the extent the majority does otherwise, I dissent.