| Couri v Siebert |
| 2008 NY Slip Op 01812 [48 AD3d 370] |
| February 28, 2008 |
| Appellate Division, First Department |
| James Couri, Respondent-Appellant, v John Siebert et al.,Appellants-Respondents. |
—[*1] James Couri, respondent-appellant, pro se.
Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered February 21,2007, which denied defendants' motion to strike the complaint for failure to comply withdiscovery orders of a Special Referee and denied plaintiff's cross motion seeking summaryjudgment striking defendants' answer and counterclaims, unanimously modified, on the law, tothe extent of granting defendants' motion and dismissing the complaint and, except as somodified, affirmed, without costs. The Clerk is directed to enter judgment accordingly.
Supreme Court improvidently exercised its discretion in denying defendants' motion to strikethe complaint. In June 2005, Hon. Harold Beeler referred defendants' motion to compelproduction of documents, together with all discovery issues raised therein, to Special RefereeLouis Crespo. After conducting hearings, the Special Referee issued an order, dated March 16,2006, directing plaintiff to produce documents, including income tax returns, for variousbusinesses under his control. Despite issuance of three more orders over the ensuing threemonths to produce the tax returns or provide releases enabling defendants to obtain them, theSpecial Referee was unable to procure plaintiff's compliance. Defendants' motion to strike thecomplaint and plaintiff's cross motion for summary judgment ensued.
Rather than rule on the merits of defendants' motion, Supreme Court referred the matter to asecond Special Referee, who "directed the parties to comply with specific discovery requests."The court denied defendants' motion, reasoning that "the discovery issues have been addressed inthe decision of Special Referee Bernard Fields." Plaintiff's cross motion was denied on theground that summary judgment had previously been denied by Justice Beeler, and his decisionwas "law of the case."
Justice Beeler referred defendants' motion to compel document production as well as "ALLPRE-NOTE DISCOVERY, INCLUDING ALL DISCOVERY CONFERENCES" to SpecialReferee Crespo. It is clear from the Special Referee's issuance of orders disposing of discoverymotions that the order of reference was to hear and determine (CPLR 4311). There is noindication that Justice Beeler's order was withdrawn or that Special Referee Crespo was unable tocontinue to supervise discovery so as to require the appointment of a successor referee (CPLR4314). Thus, as a matter of comity, the matter should have been referred to Special RefereeCrespo so as to avoid abrogating a standing order issued by a court of coordinate [*2]jurisdiction (CPLR 2221 [a]; see Mears v Chrysler Fin.Corp., 243 AD2d 270, 272 [1997]; George W. Collins, Inc. v Olsker-McLain Indus.,22 AD2d 485, 488-489 [1965] [a breach of comity is not to be tolerated because it would "lead tounseemly conflicts of decision and to protracting the litigation" (citations and internal quotationmarks omitted)]). The same considerations of judicial economy underlying the IndividualAssignment System strongly militate in favor of referring all discovery issues to the refereedesignated to decide them (see Clearwater Realty Co. v Hernandez, 256 AD2d 100[1998]).
Plaintiff has failed to allege, let alone demonstrate, that he complied with four ordersdirecting him to take necessary measures to enable defendants to obtain the tax returns theysought. Plaintiff's conduct in this litigation has been "dilatory, evasive, obstructive and ultimatelycontumacious" (Henry Rosenfeld, Inc. v Bower & Gardner, 161 AD2d 374, 374 [1990])and, in the absence of any semblance of an excuse for his noncompliance with defendants'legitimate discovery demands, warrants striking his pleading (CPLR 3126 [3]). Plaintiff pro sehas engaged in frivolous, defamatory and prejudicial conduct that includes multiple actionsagainst Dr. Siebert and his counsel, ex parte communications with the court and the SpecialReferee, voluminous and unnecessary motion practice, unresponsive papers disparaging theSpecial Referee, defendants, their attorney and their accountant, and invidious attacks on Dr.Siebert's professional standing by way of communications with his colleagues and other thirdparties.
The courts are not obliged to indulge the excesses of a pro se litigant at the expense ofdecorum, judicial economy and fairness to opposing parties. Proceeding pro se is not a license toignore court orders, engage in dilatory and obstructive conduct or malign officers of the court.
We find the medical excuse plaintiff proffered for his behavior to be uncompelling. Theextent to which he was incapacitated by treatment for a malignant melanoma is not discerniblefrom the record. In any event, it does not excuse his failure to perform the ministerial act ofsigning tax waivers at a time he was obviously capable of preparing lengthy communications tothe Special Referee. Nor is there any suggestion that plaintiff was financially incapable ofretaining counsel to assist him. Rather, it is apparent that his obstuctive conduct was calculated toimpede examination of the merits of defendants' counterclaims alleging that plaintiff defraudedthem out of millions of dollars, an inquiry that plaintiff would be understandably eager to avoid(see United States v Gilbert, Fed Sec L Rep ¶ 98,244, at 91,607-91,609, 1981 WL1662, *8, 10 [SD NY 1981], affd 668 F2d 94 [1981], cert denied 456 US 946[1982] [guilty pleas to share price manipulation, two counts of making false statements to abank]; United States v Gilbert, 504 F Supp 565 [1980]; Securities & Exch. Commn. vGilbert, 82 FRD 723 [SD NY 1979]). Concur—Tom, J.P., Saxe, Friedman andWilliams, JJ.