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​ PLAINTIFF’S FAILURE TO PROVIDE DISCOVERY AND A BILL OF PARTICULARS WARRANTED DISMISSAL OF THE COMPLAINT AS A SANCTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s motion to dismiss the complaint by plaintiff Morales based upon Morales’s failure to provide discovery and a bill of particulars should have been granted:

… Morales’s willful and contumacious conduct can be inferred from her repeated failures over an extended period of time to comply with court-ordered discovery and the parties’ discovery stipulation and to respond to the defendants’ demands for a verified bill of particulars and discovery without an adequate excuse … . Contrary to the Supreme Court’s determination, the requirements of 22 NYCRR 202.7 were satisfied by the affirmations of the defendants’ attorneys, which, inter alia, adequately set forth counsels’ good faith efforts to resolve the discovery issues raised by the defendants’ motion … . Morales v Valeo, 2023 NY Slip Op 03861, Second Dept 7-19-23

Practice Point: Here plaintiff’s failure to provide discovery and a bill of particulars warranted dismissal of the complaint (by the appellate court) as an appropriate sanction.

 

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THE SO-ORDERED STIPULATION BETWEEN THE PARTIES RENDERED THE RELATED CAUSE OF ACTION IN THE COMPLAINT MOOT; THE OTHER CAUSE OF ACTION RELIED ON SPECULATION ABOUT FUTURE EVENTS AND THEREFORE WAS NOT RIPE FOR JUDICIAL REVIEW (SECOND DEPT).
LAW OFFICE FAILURE WAS AN INADEQUATE EXCUSE FOR PLAINTIFF’S FAILURE TO APPEAR AT A SCHEDULED COURT CONFERENCE IN A FORECLOSURE ACTION (SECOND DEPT).
RADIOLOGIST WAS NOT QUALIFIED TO EXPRESS AN OPINION ON THE PROXIMATE CAUSE OF THE DEFORMITY WHICH WAS ALLEGED TO HAVE RESULTED FROM A FAILURE TO DIAGNOSE A FRACTURE. 
THE FORECLOSURE ACTION WAS AUTOMATICALLY STAYED WHEN DEFENDANT’S ATTORNEY WAS SUSPENDED; EVEN THOUGH THE ORDER GRANTING THE ATTORNEY’S MOTION TO WITHDRAW DIRECTED DEFENDANT TO RETAIN AN ATTORNEY OR GO AHEAD PRO SE, DEFENDANT WAS NEVER SERVED WITH A NOTICE TO APPOINT AN ATTORNEY REQUIRED BY CPLR 321; THEREFORE THE STAY WAS NOT LIFTED AND DEFENDANT’S MOTION TO VACATE THE SUMMARY JUDGMENT ORDER SHOULD HAVE BEEN GRANTED (SECOND DEPT).
THE FAILURE TO REQUEST A DOWNWARD DEPARTURE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE; THE DISSENT DISAGREED (SECOND DEPT).
IN A SLIP AND FALL CASE, EVIDENCE OF GENERAL CLEANING AND INSPECTION PRACTICES DOES NOT PROVE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANT MUST PROVE THE AREA WAS CLEANED OR INSPECTED CLOSE IN TIME TO THE FALL (SECOND DEPT). ​
IN THIS SLIP AND FALL CASE, THERE WAS NO EXPRESS INDEMNIFICATION AGREEMENT BETWEEN DEFENDANT GROCERY STORE AND THE FLO0R-CLEANING DEFENDANTS AND THERE WAS NO EVIDENCE THE FLOOR-CLEANING DEFENDANTS WERE NEGLIGENT OR CAUSED THE INJURY; THEREFORE THE GROCERY STORE’S INDEMNIFICATION AND CONTRIBUTION ACTIONS SHOULD HAVE BEEN DISMISSED (SECOND DEPT).
DEFENDANT, DURING THE PLEA COLLOQUY, DID NOT ADMIT HE POSSESSED A STOLEN “MOTOR VEHICLE,” AS OPPOSED TO A “MOTOR CYCLE,” AND THE JUDGE DID NOT INQUIRE FURTHER; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL BY A MOTION TO WITHDRAW THE PLEA; GUILTY PLEA VACATED (SECOND DEPT).

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