New York Personal Injury Law Blog » Discovery, New York City


August 30th, 2011

City of New York Once Again Rebuked by Appellate Court; City Answers Stricken

The City of New York has once again been shot down by an appellate court for failing to provide discovery in personal injury actions where it is a defendant. In two separate actions last week the Appellate Division First Department reversed lower court rulings that had failed to strike the Answers of the City for non-compliance.  The appellate court granted automatic wins for the plaintiffs after years of being frustrated by City failure to provide discovery.

Last year I  wrote about one of those cases,  Elias v. City, a trip and fall case where the city had repeatedly ignored discovery orders.The Appellate Division First Department slammed the City with a $7,500 sanction. The Appellate Division, now further disgusted by the City’s lack of compliance, wrote:

Although we previously directed defendant to comply fully with the outstanding discovery requests and ordered it to pay plaintiff $7,500 as a penalty for the delay in complying (71 AD3d 506 [2010]), defendant has still failed to comply fully. Over a three-year period, the City has repeatedly failed to provide discovery, despite nine court orders and sanctions imposed by this Court. These circumstances “create[ ] an inference of willful and contumacious conduct” (Brewster v FTM Servo, Corp., 44 AD3d 351, 352 [2007]) and warrant the ultimate sanction of striking defendant’s answer.

In sum, although over three years had passed since plaintiff had first sought this discovery which is central to the prosecution of his action, and despite the nine court orders directing defendant to comply with outstanding discovery, the motion court acceded to defendant’s request to be given one more opportunity to provide the discovery. Defendant has offered no excuse for its failure to produce the documents. Apparently, the imposition by this Court of a significant sanction was not sufficient to deter defendant from continuing its cavalier noncompliance with court-ordered discovery. In our view, the history of defendant’s untimely, unresponsive and lax approach to complying with the court’s previous orders warrants the striking of defendant’s answer (see Byam v City of New York, 68 AD3d 798 [2009]).

See that citation to Byam at the end? That is a Second Department case that the First Department is citing to.

The newfound determination to hold the City accountable for discovery failures, the same as other litigants, has a deep history to it, and reflects a reversal two years ago in the patience that the courts have had with City cases. The City’s Corporation Counsel published a top 10 list of recommendations on how the courts could be made more efficient and asked that “Judges must be made more accountable.” He had a variety of “performance measures” in mind.

The appellate judges were not amused, and 18 out of 20 of the First Department judges castigated the City in an unprecedented letter to the New York Law Journal. That letter contained this passage, which should have been seared into the minds and conduct of the City’s laweyrs:

In fact, it is ironic that the Corporation Counsel blames the courts for a failure to deal appropriately with litigation delays, since it is the office of Corporation Counsel of the City of New York that plays a significant role in causing those undue delays. For one thing, there is always a backlog of ready city cases in the dedicated city parts, and, with each part being assigned only two city attorneys, neither plaintiffs’ attorneys nor the trial judges have the means to ensure that ready cases can proceed immediately to trial; the city alone wields that authority.

A vast amount of inefficiency impeding the resolution of litigation is also created by the city’s oft-demonstrated cavalier attitude toward its discovery obligations. The city’s almost routine failure to timely and fully cooperate with its discovery obligations, even in the face of repeated court orders, is regularly confronted by city part judges attempting to solve the city’s intransigence (see e.g., Lewis v. City of New York, 17 Misc. 3d 559 [2007]).

The City was being  hoisted up on its own petard, claiming that the Courts were infeffcient while itself causing delays. While the First Department judges had oft times given the City a break when it came to its past failures — “[A]s a rule, our courts give far more leeway to the city than we typically do to other defendants in civil actions — that time has now clearly come to an end.

The second case the Court decided last week on the subject was Henderson-Jones v. City of New York, in which 10 police officers entered her home without a warrant, found marijuana, arrested her, subjected her to strip searches, and detained her for 30 hours before she was released without charges. The plaintiff was able to identify two of the officers by remembering their badge numbers. One repeatedly refused to show up for deposition and  the City claimed it could not identify the others.

Both the First and Second Departments have clearly weighed in on the City’s repeated failures and delays, and it seems, a new era of accountability is being forced upon it.

(hat tip —  New York Law Journal)


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