| Harrington v Palmer Mobile Homes, Inc. |
| 2010 NY Slip Op 01871 [71 AD3d 1274] |
| March 11, 2010 |
| Appellate Division, Third Department |
| Yvonne K. Harrington et al., Respondents, v Palmer MobileHomes, Inc., Doing Business as Palmer Manufactured Homes,Appellant. |
—[*1] Welch & Zink, Corning (David H. Jacobs of counsel), for respondents.
Garry, J. Appeal from an order of the Supreme Court (Fitzgerald, J.), entered December 10,2008 in Schuyler County, which, among other things, denied defendant's motion to precludecertain evidence and/or for summary judgment dismissing the complaint.
Plaintiff Yvonne K. Harrington owned a mobile home in which her son, plaintiff David T.Heath, resided. The mobile home was damaged by fire in November 2000[FN1]and, in 2003, plaintiffs commenced this negligence action. In March 2008, Supreme Court issueda scheduling order that, among other things, required all dispositive motions to be madereturnable at a term of court in August 2008 or, with leave of court, at a subsequent term onOctober 3, 2008, and required motions in limine to be filed, served and submitted by October 1,2008.[FN2]On October 1, 2008, without obtaining court permission, defendant mailed a motion, madereturnable October 24, 2008, seeking an order precluding plaintiffs from offering experttestimony and certain [*2]evidence, and an order directingsummary judgment in defendant's favor. The court denied the motion in its entirety, withoutprejudice. Defendant appeals.
Supreme Court has the authority to control its calendar by establishing schedules andtimetables (see Thomas v Benedictine Hosp., 296 AD2d 781, 784 [2002]). Its broaddiscretion to supervise disclosure and fashion appropriate remedies for noncompliance will notbe disturbed absent "a clear abuse of that discretion" (McMahon v Aviette Agency, 301AD2d 820, 821 [2003]; see Doherty vSchuyler Hills, Inc., 55 AD3d 1174, 1175-1176 [2008]). Defendant's request forsummary judgment was served without leave or explanation well after the deadlines establishedmore than six months earlier. Contrary to defendant's claim, plaintiffs' alleged failure to timelyfile the note of issue did not absolve defendant from its independent obligation to comply withthe scheduling order. That order set forth clear and specific directions for the time, place, andprocedures by which dispositive motions were to be presented, without reference to the note ofissue or other predicate events. Further, defendant did not seek leave of court before the latefiling, nor make any attempt to establish good cause for the delay (see Brill v City of New York, 2 NY3d648, 652 [2004]; Coty v County ofClinton, 42 AD3d 612, 614 [2007]). Litigants may not ignore court-ordered time frameswith impunity (see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]). Denial of the motionwithout prejudice was well "within [the court's] wide latitude of discretion" (Town of Kinderhook v Slovak, 47AD3d 1093 [2008]).
As to that part of the motion seeking preclusion of certain evidence, while defendant's delayand failure to comply with the scheduling order was less significant, Supreme Court found thatthis application had been improperly used to "cloak[ ]" the untimely dispositive motion, and thatthe evidentiary issues it addressed should have been brought to the court's attention long before.Even assuming that the untimeliness, standing alone, was an insufficient basis for the denial,defendant failed to establish grounds for preclusion by demonstrating prejudice and a willfulfailure to disclose (see Mead v Dr.Rajadhyax' Dental Group, 34 AD3d 1139, 1140 [2006]). Although defendant arguedthat plaintiffs had failed to timely complete expert disclosure, the record reveals that they hadsupplied the expert's name and position, as well as a copy of his report, in 2004. There is noindication that defendant objected or demanded further disclosure at that time or thereafter (see Gross v Sandow, 5 AD3d 901,902-903 [2004], lv dismissed and denied 3 NY3d 735 [2004]). Noting that the motionwas denied without prejudice, we find this also was well within the court's "broad discretion" tocontrol expert disclosure (id. at 902).
Peters, J.P., Spain, Lahtinen and Stein, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: Shortly thereafter, the mobilehome was destroyed by a second, apparently unrelated, fire.
Footnote 2: This order also scheduled theaction as the first "back-up" for trial commencing October 27, 2008.