| Mazzuca v Warren P. Wielt Trust |
| 2009 NY Slip Op 01386 [59 AD3d 907] |
| February 26, 2009 |
| Appellate Division, Third Department |
| Terri Mazzuca, Individually and as Parent of Angelina Mazzuca,an Infant, Appellant, v Warren P. Wielt Trust, Individually and Doing Business as Pine RidgeTrailer Court, et al., Respondents. |
—[*1] Roche, Corrigan, McCoy & Bush, P.L.L.C., Albany (Scott W. Bush of counsel), forrespondents.
Kane, J. Appeal from an order of the Supreme Court (Hoye, J.), entered November 27, 2007in Schenectady County, which granted defendants' motion to strike the complaint.
Plaintiff, individually and on behalf of her infant daughter, commenced this action allegingthat her daughter was injured due to dangerous conditions on defendants' premises. When theparties were unable to schedule an independent medical examination (hereinafter IME), SupremeCourt ordered that the IME take place by a certain date. After defense counsel confirmed a datefor the IME with plaintiff's counsel, and plaintiff's counsel informed plaintiff of that date,plaintiff failed to produce her daughter for the IME.
Defendants moved to strike the complaint for plaintiff's failure to comply with ordereddisclosure. Plaintiff's counsel, who was unable to communicate with plaintiff regarding themotion, cross-moved to relieve plaintiff and have a guardian ad litem appointed to represent herdaughter's interests. In the alternative, counsel sought to be relieved and allow 60 days for [*2]plaintiff to substitute new counsel, or to reschedule the IME andimpose a monetary sanction for the failure to attend the scheduled IME. Supreme Court granteddefendants' motion and struck the complaint, implicitly denying plaintiff's request for relief.Plaintiff appeals.
Supreme Court should not have struck the complaint. While a trial court has discretion todismiss a complaint as a sanction against a plaintiff who fails to comply with a court order andfrustrates the disclosure process (see CPLR 3126 [3]; Kihl v Pfeffer, 94 NY2d118, 122-123 [1999]), this drastic sanction is generally only justified when the party seekingdismissal demonstrates that the failure to comply with the request and order for disclosure waswillful and contumacious (see Dohertyv Schuyler Hills, Inc., 55 AD3d 1174, 1176 [2008]). A pattern of noncompliance cangive rise to an inference of willfulness (see id. at 1176; Adamski v Schuyler Hosp., Inc., 36AD3d 1198, 1199 [2007]). Here, plaintiff failed to attend one IME (compare Ernie Otto Corp. v InlandSoutheast Thompson Monticello, LLC, 53 AD3d 924, 926 [2008], lv dismissed11 NY3d 827 [2008]; Du Valle v SwanLake Resort Hotel, LLC, 26 AD3d 616, 617 [2006]). The record fails to include anydefinite reason for her noncompliance, but does include hearsay claims that plaintiff did notreceive notice of the IME. Although counsel and his secretary affirm that plaintiff was informed,a factual issue exists as to the reason why plaintiff failed to appear at the IME and whether herconduct was willful. Under all of the circumstances herein, particularly the age of the child, weremit for Supreme Court to enter a conditional dismissal order, imposing conditions that thecourt deems just.
Appointment of a guardian ad litem may be appropriate here. The statutory preference is fora parent to represent the child (see CPLR 1201; Bluntt v O'Connor, 291 AD2d106, 113 [2002], lv denied 98 NY2d 605 [2002]). Generally, a custodial parent should beremoved as the child's representative in an action only where the parent has an interest adverse tothe child (see Bluntt v O'Connor, 291 AD2d at 113; Stahl v Rhee, 220 AD2d 39,44 [1996]). While an infant would normally appear by his or her parent, an infant "shall appearby his [or her] guardian ad litem if . . . the court so directs because of a conflict ofinterest or for other cause" (CPLR 1201). Here, although there is no indication that plaintiff'sinterests are adverse to her daughter's such that a guardian ad litem should be appointed (seeMatter of Manufacturers Hanover Trust Co., 83 AD2d 808, 808 [1981]), the record raisesconcerns as to whether plaintiff is adequately pursuing the action on her daughter's behalf(compare Sutherland v City of New York, 107 AD2d 568, 568-569 [1985], affd66 NY2d 800 [1985]). Supreme Court should hold a hearing to determine the reasons forplaintiff's failure to prosecute this action, and whether there is "other cause" to appoint aguardian ad litem to prosecute this action on the daughter's behalf (compare Stahl vRhee, 220 AD2d at 44-46, with Bluntt v O'Connor, 291 AD2d at 113).
Plaintiff's counsel was entitled to be relieved. Counsel adequately explained the difficulty incommunicating with plaintiff and her refusal to keep in contact or attend appointments (seeLake v M.P.C. Trucking, 279 AD2d 813, 814 [2001]). We therefore grant counsel'sapplication to be relieved and give plaintiff 30 days to substitute new counsel before furtherproceedings are conducted. The matter of an appropriate counsel fee or charging lien should bedetermined by Supreme Court (see Bankers Trust Co. v Hogan, 187 AD2d 305, 305-306[1992]).
Cardona, P.J., Rose and Stein, JJ., concur. Ordered that the order is modified, on the law,without costs, by reversing so much thereof as granted defendants' motion; defendants' motiondenied, plaintiff's cross motion partially granted by relieving counsel and allowing plaintiff 30days to substitute new counsel, and matter remitted to the Supreme Court for a conditional orderof dismissal and for a hearing to determine whether to appoint a guardian ad litem to representAngelina Mazzuca's interests; and, as so modified, affirmed.