| Allstate Ins. Co. v Buziashvili |
| 2010 NY Slip Op 02479 [71 AD3d 571] |
| March 25, 2010 |
| Appellate Division, First Department |
| Allstate Insurance Company et al., Respondents, v AlexBuziashvili, Appellant, et al., Defendants. |
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Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered December 17,2008, which granted plaintiffs' motion to strike defendant Alex Buziashvili's answer and for adefault judgment against him, unanimously reversed, on the law and the facts, without costs, theanswer reinstated, and the matter remanded to the IAS court for consideration, after affording theparties an opportunity to be heard, of such penalty less than striking the answer as the courtdeems just.
To the extent the court believed it was constrained by the doctrine of law of the case to strikedefendant's answer upon his failure to comply with a prior discovery order, this was error. Thatdoctrine does not apply to discretionary rulings such as case management decisions (Brothersv Bunkoff Gen. Contrs., 296 AD2d 764, 765 [2002]). Moreover, the prior order did notdirect, or even suggest, that defendant's answer be stricken in the event of noncompliance.
Nonetheless, the record shows that defendant's response to plaintiffs' discovery notice andcourt orders has been inexcusably lax (see Figdor v City of New York, 33 AD3d 560[2006]). Plaintiffs first requested the patient files in dispute in a discovery notice dated August2004. Although defendant indicated, in his March 2005 response, that he would produce anysuch responsive documents, he failed to do so for several years. In September 2007, in asubsequent discovery response, defendant indicated that the records were in his possession at awarehouse in Brooklyn, though he did not actually produce them at that time.
At a November 27, 2007 conference, the court ordered defendant to produce the records. InJanuary 2008, defendant granted plaintiffs access to the warehouse where the files were kept.This access, however, was not meaningful because the records were intermixed among hundredsof boxes of nonresponsive and irrelevant documents. Plaintiffs sought further relief and, at anApril 25, 2008 conference, the court ordered defendant to review and segregate the documentsand make them available for inspection at the warehouse by September 1, 2008. Despite thegenerous amount of time given by the court, defendant did not produce any of the patient files by[*2]the deadline. Nor did defendant ask plaintiffs, or the court,for additional time to comply, or seek a protective order. Instead, defendant simply ignored thecourt order. It was not until several weeks after the deadline had passed that defendant producedonly a small portion of the documents.
We find that defendant's course of conduct in failing to produce the files was willful andwarrants imposition of some sanction. It took defendant four years from the first discoveryrequest to produce only a small number of the documents in question. Even when the court gavedefendant an additional four months to cure the noncompliance, defendant ignored the courtmandate. Defendant offers no convincing explanation for the lengthy delay in turning over thepatient files. He does not point to anything in the record to support his claim that there wereoutstanding issues as to privilege and ownership of the documents. Defendant's excuse thatproducing the documents was a drain on his time and that his energy and resources should bedevoted to more important tasks is insufficient to justify violation of a court order.
Nevertheless, because defendant did make a partial production of the documents and, inresponse to plaintiffs' motion to strike, indicated his willingness to continue production, we donot believe that the extreme sanction of striking the answer was appropriate. We also note thatthe court's orders did not warn defendant that his answer might be stricken if he did not comply,nor did the court issue a conditional order (cf. Garcia v Defex, 59 AD3d 183 [2009]).There is no indication that such a warning was given orally at any conferences and there was noprior motion practice that might have apprised defendant of the serious consequences he facedfor continued noncompliance.
Under these circumstances, we believe that a lesser sanction is appropriate. Although thisCourt normally would impose the penalty it deemed just, the parties here limited their argumentto the issue of whether the appropriate penalty for defendant's behavior was striking the answeror no sanction at all. Since they did not address the possibility of a lesser sanction and becausewe believe that some penalty is warranted, we remand the matter (see Quiceno v 101 ParkAve. Assoc., 272 AD2d 107 [2000]). Concur—Gonzalez, P.J., Moskowitz, Richterand RomÁn, JJ.