Beauregard v. Millwood-Beauregard

207 A.D.2d 633, 615 N.Y.S.2d 938, 1994 N.Y. App. Div. LEXIS 8526

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 25, 1994
• Status: Published

Opinions

— Casey, J.

Appeal from an order of the Family Court of Tompkins County (Barrett, J.), entered March 2, 1993, which, inter alia, dismissed petitioner’s application, in a proceeding pursuant to Family Court Act article 6, for modification of custody.

We conclude that the ultimate sanction of dismissal is an inappropriate penalty to impose upon petitioner for his counsel’s delay of approximately 30 days in responding to respondent’s interrogatories and a demand to produce (see, Zletz v Wetanson, 67 NY2d 711, 713-714). "In the absence of conduct 'so blatantly contumacious as to require the ultimate penalty’ * * * the drastic sanction of dismissal is not warranted” (Farrell v New York State Elec. & Gas Corp., 120 AD2d 778, 779, quoting Spancrete Northeast v Travelers Indem. Co., 99 AD2d 623, 624). Without a showing "of a deliberately evasive, misleading and uncooperative course of conduct or a determined strategy of delay that would be deserving of the most vehement condemnation”, the record will not support an order of dismissal (Forman v Jamesway Corp., 175 AD2d 514, 515), particularly in a child custody matter where the child’s best interest is at stake.

It is our view that although counsel’s failure to respond until after respondent had moved to dismiss is inexcusable, the delay was relatively brief and there is nothing in the record to suggest the type of evasive, misleading and uncooperative course of conduct or strategy of delay that would justify the drastic penalty of dismissal, particularly where, as here, the delay is attributable to petitioner’s counsel rather than to petitioner (see, Lowitt v Korelitz, 152 AD2d 506, 507-508). We conclude that a monetary penalty in the amount of $500, imposed on petitioner’s counsel personally, is appropriate in the circumstances (see, Wolfson v Calamel, 162 AD2d 959; see also, Farrell v New York State Elec. & Gas Corp., supra).

Family Court also erred in concluding that petitioner had admitted the allegations of the document entitled an answer and amended counterpetition. Assuming that it is proper to include an amendment to a prior pleading in an answer to a different pleading, the amended pleading contained nothing material and relevant that had not already been pleaded in the original pleading, which petitioner answered. The order should be reversed and the matter remitted to Family Court for a resolution on the merits.

Cardona, P. J., Mercure and Yesawich Jr., JJ., concur.