Pueblo Med. Treatment v Progressive Cas. Ins. Co . (2005 NY Slip Op 50287(U))

Civil Court of the City of New York, Queens County

102975/2002

The Plaintiff: Baker, Barshay & Neuwirth, LLP, by Robert Baker, Esq., 1393 Veterans Memorial Highway, Suite 210N, Hauppauge, NY 11788

For the Defendant: Freiberg & Peck, LLP, by Adam C. Weitz, Esq., 12 East 41st Street, New York, New York 10017

Charles J. Markey, J.

The instant decision, in this action for no-fault first party benefits, addresses the question of the extent of efforts required of a movant before it can secure preclusion or dismissal against the party who failed to honor a so-ordered stipulation. In the present case, plaintiff does not dispute the fact of noncompliance. Yet, plaintiff’s counsel insists that defendant must show that it placed a statement on the record at the deposition session before a court can invoke preclusion.

The defendant moves for preclusion for plaintiff’s failure to comply with a so-ordered stipulation [Siegal, J.], requiring a deposition of the plaintiff on or before February 18, 2004, at a named court-reporting facility, Diamond Reporting, in Jamaica, New York. The defendant attempted to secure compliance by telephoning opposing counsel, on February 17, 2004, to confirm that the deposition would go forward on the next day. Plaintiff’s counsel said that it would not produce a witness.

Defendant did not go to the reporting service named in Judge Bernice Siegal’s order. Instead, it subsequently moved for preclusion of all evidence, the sanction specifically recited in the so-ordered stipulation.

Plaintiff contends that defendant should not be able to secure preclusion without having made a specific statement on the record of an attempted examination before trial (“EBT”) of the failure of plaintiff’s counsel or its client to show up. Plaintiff’s counsel, in papers opposing the motion, argues, in pertinent part:

The defendant’s ability to subsequently preclude the plaintiff from offering evidence should not be a default right. The defendant should be required to offer and prove its attempt at conducting the EBT via a default statement on the record indicating they “showed up.” For the defendant to be able to enter a stipulation naming preclusion as the penalty for plaintiff’s failure to appear and allowing [*2]defendant to successfully preclude plaintiff’s evidence without showing up and taking a default statement at their own EBT would be like “arming” defense counsel with a means with which to circumvent equitable discovery practices. [Affirmation of Robert J. Baker, Esq., page 2].

Plaintiff’s arguments bear no merit for several reasons. First, the reason why some attorneys decide to place the failure of an opposing party to appear at an EBT is to preserve or make a record, especially when the absence of the other party could not have been predicted or the date or circumstances surrounding the deposition are in dispute. The need in those cases to arrange for a court reporter and make a record of the absence of an opposing party is often indispensable as a groundwork for future motion practice.

In the case at bar, in contrast, defense counsel exercised the courtesy of calling opposing counsel the day before the deposition and was advised that neither plaintiff nor its attorneys would appear. In other words, there was no need for a court reporter because plaintiff’s counsel made an advance repudiation of its stipulated undertaking to be present at a deposition to be held on or before February 18, 2004. In the present case, sound lawyering would have required defense counsel to fax a letter to plaintiff’s counsel on February 17, 2004, confirming the conversation of plaintiff’s refusal to attend the Feb. 18 EBT. Nevertheless, such a letter is not necessary for the disposition of the instant motion because plaintiff does not dispute that it did not attend the EBT, but merely implores for another opportunity to attend such a deposition.

Second, to adopt plaintiff’s specious argument would thrust upon a litigant the expense and burden of hiring and paying court-reporting agencies and reserving rooms, even though counsel is advised ahead of time that an opposing party will not attend. Defense counsel would, in effect, be like the proverbial dog chasing its own tail. In other words, where a stipulation is plain on its face, advising a party of the consequences of the failure to appear, and a party notifies its adversary that it will not attend the court-ordered discovery session or deposition, there is no need to force upon a lawyer the expense and effort of making arrangements for a deposition that will never take place.

Third, plaintiff’s counsel’s argument is also a way to extract yet “another bite at the apple,” namely, yet another chance to attend the deposition. Judges Edgar Walker and Bernice Siegal, in their joint decision in Hoss Medical Services v. Government Employees Insurance Co. (4 Misc 3d 521 [NYC Civ Ct Queens County June 17, 2004]), made clear that parties in no fault first party benefits cases will be held accountable for the language they employed in a stipulation and that their failure to comply with a discovery request posed in a court-ordered stipulation will not be tolerated. In Hoss, a case involving the same plaintiff’s law firm, the court stated:

It has long been held that parties may, by stipulation, chart their own procedural course in a case, which the courts are bound to enforce except in certain limited circumstances not even alleged to be present in these cases [citations omitted].

* * * * *

. . . [T]he court is not free to reform the stipulations to conform to what it thinks is proper or to impose a sanction other than that agreed to.

Id. at 523.

It would serve no purpose after a plaintiff’s counsel failed to abide by a court-ordered stipulation to require defense counsel to secure a second stipulation for enforcement of the prior agreement or to make futile arrangements before enjoying the benefit of the penalty that was clearly prescribed in the first stipulation. Any other result would render a mockery of proceedings and of judicial orders and would send a mischievous message that apparent finality actually does not mean final.

In the present case, this Court holds that defense counsel was not required to undergo the expense and trouble of arranging for a deposition before it moves for preclusion or dismissal. Accordingly, the defendant’s motion is, in all respects, granted. The undersigned will enforce the terms of the instant stipulation, and, accordingly, full preclusion is accorded against the plaintiff, and the complaint is dismissed.

The foregoing constitutes the decision, order, and opinion of the Court.

______________________________Hon. Charles J. Markey

Judge, Civil Court, Queens County

Dated: Jamaica, New York

February 18, 2005

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