Failure to Satisfy ‘Discover Order’ Proves Costly in Case against Mets

Nov 21, 2008

New York’s Appellate Term, Second Department has reversed a lower court’s denial of a motion to dismiss plaintiff’s complaint against the owner of the New York Mets baseball team, finding that the plaintiff willfully failed to provide requested discovery.
Joyce Trebich filed her claim in Supreme Court, seeking to recover damages for personal injuries she allegedly sustained after tripping and falling on a sidewalk at Shea Stadium.
The defendant Sterling Mets, L.P. answered in February 2005, as well as issued a demand for a bill of particulars and discovery. The plaintiff failed to respond to those demands, and, at a preliminary conference, she was directed to serve a bill of particulars and complete all outstanding discovery by June 17, 2005. Trebich failed to comply, and the defendant made a written request for the outstanding discovery on July 11, 2005.
Having received no response, the defendant moved for an order dismissing the complaint or, alternatively, precluding the plaintiff from offering evidence at a trial or compelling plaintiff to provide the outstanding discovery.
The court specifically wrote that “while we recognize that the drastic remedy of dismissal is reversed for those cases where the conduct of the resisting party is demonstrated to be willful and contumacious (Novick v. DeRosa, 51 AD3d 885 [2008]), we nevertheless conclude that, under the circumstances of this case, dismissal is the only appropriate sanction.
“Not only did plaintiff disregard appellant’s good faith attempts to obtain outstanding discovery, but she repeatedly ignored court orders directing her to provide the discovery. Indeed, plaintiff offered no explanation for her failure to obey four court orders and respond to numerous written defense inquiries over nearly a two-year period. This persistent failure can only be characterized as willful and contumacious (see id; Maiorino v. City of New York, 39 AD3d 601, 602 [2007]; Lanc v. Donnelly, 13 AD3d 593 [2004]).
“The fact that plaintiff ultimately served an incomplete response 31 days after the date of the fourth court order, is in our opinion, too little, too late.”
“The Trebich case is unusual because the sanction of striking a party’s pleadings is, as the Appellate Term stated, a ‘drastic remedy,’” said Carla Varriale, a partner at Havkins, Rosenfeld, Ritzert & Varriale, who represented the defendant along with co-attorney Jarett L. Warner.
“However, since the defendant was able to demonstrate the pattern of conduct and stonewalling, the Appellate Term reviewed the record carefully and reversed the Civil Court’s denial of defendant’s motion.”
Joyce Trebich v. Sterling Mets, L.P.; Appellate Term of the Supreme Court of New York, Second Department; 2008 NY Slip Op 52126(U); 10/27/08


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