Vista Surgical Supplies, Inc. v Progressive Cas. Ins. Co. (2006 NY Slip Op 52267(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores J. Waltrous, J.), entered August 16, 2005. The order, inter alia, denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss the complaint pursuant to CPLR 3126.

Order affirmed without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits. By a so-ordered stipulation dated September 24, 2004, plaintiff was directed, among other things, to appear for a deposition no later than November 12, 2004. The stipulation further provided, in relevant part, that:
“[i]f [plaintiff] fails to appear for said EBT [plaintiff] shall be precluded from offering evidence [at] trial.

***
ALL DATES CONTAINED HEREIN RELATING TO COMPLETION OF ITEMS IN THIS ORDER MUST BE ADHERED TO. COUNSEL MAY NOT ENTER INTO ANY [*2]ADJOURNMENTS WITHOUT FURTHER ORDER OF THIS COURT, [e]xcept for [plaintiff’s] summary judgment motion” (emphasis in original).

Plaintiff failed to appear at the deposition and, instead, moved for summary judgment just prior to the date plaintiff was required to appear. Defendant cross-moved to strike plaintiff’s pleadings and dismiss the complaint or, alternatively, to preclude plaintiff from introducing evidence at trial based on plaintiff’s failure to appear at the deposition. The court below denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss, noting that plaintiff failed to appear at the deposition as directed. Plaintiff now appeals claiming, among other things, that the filing of its motion for summary judgment stayed all discovery and, thus, there was no requirement to appear on the scheduled date.

While CPLR 3214 (b) automatically stays discovery during the pendency of a summary judgment motion, it should not be invoked in this case where the court plainly directed otherwise. Pursuant to the so-ordered stipulation, plaintiff was to appear at a deposition on or before November 12, 2004 or face preclusion, and no extension of this date would be permitted without prior court approval. The stipulation unequivocally required prior court approval for any adjournments of dates set forth in the stipulation, “[e]xcept for [plaintiff’s] summary judgment motion.” Thus, while plaintiff was permitted to adjourn its time to file its summary judgment motion without prior court approval, this permission did not extend to any other deadlines set forth in the so-ordered stipulation. By requiring prior court approval, the court made clear that strict compliance with discovery was required, regardless of whether a summary judgment motion was served.

Plaintiff’s service of the summary judgment motion just before it was required to appear was nothing more than a ploy to avoid the court’s directives. Such flagrant disregard of a court order should not be condoned.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 17, 2006