| Olmsted v Pizza Hut of Am., Inc. |
| 2009 NY Slip Op 03076 [61 AD3d 1238] |
| April 23, 2009 |
| Appellate Division, Third Department |
| Terry L. Olmsted, Respondent, v Pizza Hut of America, Inc.,Appellant. |
—[*1] Robert E. Lahm, P.L.L.C., Syracuse (Robert E. Lahm of counsel), for respondent.
McCarthy, J. Appeal from an order of the Supreme Court (Garry, J.), entered February 22,2008 in Madison County, which partially granted plaintiff's motion to strike defendant's answer.
In 1999, plaintiff received an electrical shock in the course of her employment with V & JNational Enterprises, LLC, a franchise holder of a Pizza Hut restaurant in Madison County. Thesubject restaurant had been built in 1979. According to plaintiff, her injury resulted from thefailure to install a water-resistant outlet, as required under the then existing national electricalcode, coupled with a corrupted ground fault interrupter. Despite preaction discovery, plaintiff'scounsel was unable to identify the party or parties responsible for installing this allegedlydefective electrical system. Thus, in 2002, she commenced this action against defendant and two"John Doe" defendants (see CPLR 1024) seeking to recover for her injuries.
Some six years after this action was commenced, Supreme Court (Garry, J.) struck certainprovisions of defendant's answer pursuant to CPLR 3126 for willful noncompliance withdiscovery. The stricken provisions resolved all issues of liability in plaintiff's favor. Defendantnow appeals, arguing primarily that the record is devoid of any evidence that its conduct duringthe course of this litigation was willful, contumacious or in bad faith such that this drasticremedy was justified. We affirm.
From the onset of this litigation, discovery efforts were essentially twofold in nature,namely, plaintiff sought to identify and serve the unknown parties and also sought to identify and[*2]produce an employee of defendant with knowledge of therelevant events. By the fall of 2003, however, the litigation became complicated and delayed bythe insolvency of defendant's insurer (which warranted intervention by the State LiquidationBureau and the substitution of defense counsel) and a coverage dispute between the Bureau andV & J (which allegedly delayed substituted counsel's ability to take over the defense). Thus,between the fall of 2003 and April 2004, neither law firm involved in the matter apparently hadauthority to proceed with defendant's defense. All issues pertaining to coverage and counsel,however, were resolved by mid-April 2004.
Within a short time thereafter, defense counsel did provide information that permittedplaintiff to eventually ascertain the identity of the general contractor and an electrical contractorwho had maintained the premises over the years. This information ultimately proved fruitless forplaintiff, albeit through no fault of defendant.[FN*]In the meantime, however, plaintiff's demand that defendant produce an employee withknowledge of the relevant events had not been met.
As to this separate issue, plaintiff's counsel made repeated requests between 2003 and 2007for defendant to produce an employee for deposition. Specifically, on June 18, 2003, plaintiffserved a notice to take the deposition of an employee of defendant "who possess[es] sufficientknowledge of the company's business affairs and/or the facts and circumstances of the withinaction." Two years later (i.e., on June 23, 2005), plaintiff's counsel reminded defense counselthat they "have not held depositions of anyone from [defendant]" and reiterated its request that"someone 'with knowledge' " be produced. On January 31, 2007, defense counsel was againreminded that they "have not yet deposed any one from [defendant]." At this time, plaintiff'scounsel requested a conference, requested certain "equipment specifications for the franchises"and advised defense counsel that a motion to strike would be forthcoming if defendant did notproduce someone to be deposed. On February 1, 2007, defense counsel advised Supreme Court(McDermott, J.) that "there is no one from [defendant's] corporate office 'with knowledge'. . . of the incident in question."
Following a conference in early March 2007, Supreme Court (McDermott, J.) issued anorder directing defendant to provide plaintiff, by May 15, 2007, with the identity of past orpresent employees with personal knowledge of the building plans and specifications for allfranchises constructed in 1979 (including the subject franchise) or to advise plaintiff's counsel inwriting that no such employee can be identified. On March 21, 2007, defense counsel identifiedJames Bradley as an employee with pertinent general knowledge from the past decade. Bradleywas thus scheduled to be deposed. In the meantime (i.e., on August 20, 2007), plaintiff's counselalso served a notice to produce all franchise agreements for the subject restaurant between 1979and 1999 and all correspondence regarding renovations and electrical work during the same timeperiod.
As it turned out, Bradley was not employed by defendant but rather by V & J. This [*3]distinction was never disclosed. Rather, plaintiff's counselproceeded with Bradley's deposition with the belief that he was employed by defendant. Theinaccuracy of the employment information regarding Bradley was quickly discovered in thecourse of that deposition and, ultimately, Bradley had very little to offer on the issues involved inthis litigation.
On August 29, 2007, plaintiff's counsel informed Supreme Court (McDermott, J.) of thesemost "recent events" and advised the court of plaintiff's intention to make "the appropriatemotion." One day later, defense counsel, pursuant to the March 2007 order, notified plaintiff'scounsel in writing that defendant was unable to locate a past or present employee, other thanBradley, with personal knowledge regarding the plans and specifications of any franchise duringthe relevant time period. To be sure, the May 15, 2007 court-ordered deadline for thisinformation had long since passed and, as noted, Bradley was not an employee of defendant. Allof these events, as well as defendant's failure to respond to the August 20, 2007 demand fordocuments, culminated in plaintiff's motion to strike defendant's answer.
As often reiterated by this Court, "Supreme Court has discretion to imposesanctions—including striking a party's pleading—for the willful failure to discloseevidence and, absent a clear abuse of that discretion, the sanctions imposed will not be disturbedon appeal" (Ernie Otto Corp. v InlandSoutheast Thompson Monticello, LLC, 53 AD3d 924, 926 [2008], lv dismissed11 NY3d 827 [2008] [internal quotation marks and citation omitted]; see Doherty v Schuyler Hills, Inc., 55AD3d 1174, 1176 [2008]). Here, the record supports the finding of Supreme Court (Garry,J.) that defendant willfully failed to comply with plaintiff's continued and repeated discoverydemands (see e.g. Doherty v Schuyler Hills, Inc., 55 AD3d at 1176; Adamski v Schuyler Hosp., Inc., 36AD3d 1198, 1199-1200 [2007]). To this end, we note that, throughout the course of thelitigation, defendant was unable to produce a single corporate employee to provide personalknowledge (because of years of service) about construction projects during the subject timeperiod, or to provide institutional knowledge of such projects (based on a review of corporaterecords) or to provide a suitable explanation as to why such information does not exist or cannotbe ascertained. Furthermore, even if defendant's willfulness is not established due to itsrepresentations concerning Bradley's status, its willfulness may otherwise be inferred from itsoverall pattern of noncompliance (see Doherty v Schuyler Hills, Inc., 55 AD3d at 1176;Ernie Otto Corp. v Inland Southeast Thompson Monticello, LLC, 53 AD3d at 926; Myers v Community Gen. Hosp. ofSullivan County, 51 AD3d 1359, 1361 [2008]; Cavanaugh v Russell Sage Coll., 4 AD3d 660, 661 [2004]), apattern which no doubt frustrated the disclosure scheme of the CPLR (see e.g. Zletz vWetanson, 67 NY2d 711, 713 [1986]; Ernie Otto Corp. v Inland Southeast ThompsonMonticello, LLC, 53 AD3d at 926; Cafferty v Thomas, Collison & Place, 282 AD2d959, 961 [2001]). Finally, given these facts, we are unable to conclude that the remedy fashionedwas an abuse of discretion (see CPLR 3126 [3]; see e.g. Adamski v Schuyler Hosp.,Inc., 36 AD3d at 1200; O'Brien vClark Equip. Co., 25 AD3d 958, 960 [2006]; Cavanaugh v Russell Sage Coll., 4AD3d at 661).
We have examined defendant's remaining contentions and find them to be without merit.
Cardona, P.J., Mercure, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isaffirmed, with costs.
Footnote *: The action against the generalcontractor was discontinued in 2005 because that entity no longer existed, and plaintiff's attemptto amend the caption to substitute the electrical contractor was unsuccessful on an appeal to thisCourt (28 AD3d 855 [2006]). Thus, by April 2006, the case was proceeding against defendantalone.