Louis v. Hudson 36 LLC

2024 NY Slip Op 34236(U)

• Court: New York Supreme Court, New York County
• Decided: November 26, 2024
• Docket: Index No. 155660/2020
• Status: Unpublished

Opinion

Louis v Hudson 36 LLC 2024 NY Slip Op 34236(U) November 26, 2024 Supreme Court, New York County Docket Number: Index No. 155660/2020 Judge: Sabrina Kraus Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [FILED: NEW YORK COUNTY CLERK 12/02/2024 03 :20 PM] INDEX NO. 15566 0/ 2 0 2 0 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 12/02/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. SABRINA KRAUS PART 57M Justice ---------------------------------------------X INDEX NO. 155660/2020 DARNELL LOUIS, MOTION DATE 09/27/2024 Plaintiff, MOTION SEQ. NO. _ _ _00_1_ __ - V-

HUDSON 36 LLC, DECISION + ORDER ON MOTION Defendant. --------------------------------,------------------X

HUDSON 36 LLC Third-Party Index No. 595525/2021 Plaintiff,

-against-

LALEZARIAN PROPERTIES LLC

Defendant. ,________________________,_ _ _ -----------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 37, 38, 53, 54, 55 were read on this motion to/for STRIKE PLEADINGS

Plaintiff commenced this action seeking damages for personal injuries sustained when

plaintiff tripped and fell on a wooden plank, causing serious injury to his left hand and left

shoulder.

The summons and complaint were filed on July 23, 2020.

Defendant served and filed an answer on October 20, 2020, and the parties proceeded to

engage in discovery.

The most recent status conference order, issued on May 15, 2024, stated plaintiff had

failed to appear for an Independent Medical Examination (IME) three times and agreed to pay

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the fees associated with missing those appointments. Defendant was granted leave to move for

appropriate relief.

On October 28, 2024, defendant moved to strike the complaint for failure to appear at the

IME and to compel payment for the missed appointments.

On October 31, 2024, the court conferenced the pending motion with the parties. Plaintiff

did submit payment for the costs associated with the missed appointments and defendant agreed

to give plaintiff until December 31, 2024 to appear for an IME. However, the parties could not

agree on the appropriate relief if plaintiff failed to appear again.

"The determination whether to strike a pleading for failure to comply with court-ordered

disclosure lies within the sound discretion of the trial court" (Fishbane v Chelsea Hall, LLC, 65

AD3d 1079, 1081 [2d Dept 2009]).

" ... [T]he drastic remedy of striking a pleading pursuant to CPLR 3126 should not be

imposed unless the failure to comply with discovery demands or orders is clearly willful and

contumacious. Willful and contumacious conduct may be inferred from a party's repeated failure

to comply with court-ordered discovery, coupled with inadequate explanations for the failures to

comply or a failure to comply with court-ordered discovery over an extended period of time"

(Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923 [2d Dept 2012] [internal quotation marks and

citations omitted]).

It is well established that the willful failure to appear for an IME may warrant dismissal

of the action (see e.g., Aziz v City ofNew York, 130 AD3d 451 [1st Dept 2015]).

CPLR 3101 (a) provides in pertinent part "[t]here shall be full disclosure of all matter

material and necessary in the prosecution or defense of an action, regardless of the burden of

proof .... " The words "material and necessary" have been "interpreted liberally to require

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disclosure ... of any facts bearing on the controversy which will assist preparation for trial by

sharpening the issues and reducing delay and prolixity." Allen v Crowell - Collier Puhl. Co., 21

NY2d 403,406 [1968]; Reyes v Lexington 79th Corp., 149 AD3d 508,508 [1st Dept 2017]).

As plaintiff alleges severe and permanent injuries and an IME of those injuries is

obviously relevant to the defense of this action.

Defendant asserts that although they have missed the orthopedic IME, they have appeared

for two other IME's. As the parties were prepared to stipulate to allowing defendant one final

opportunity to appear for the IME, the court issues the following conditional order:

The defendant having established that plaintiff has willfully and contumaciously failed to appear

for an orthopedic IME as directed in the preliminary conference order of this court dated July 18,

2022, and in the orders dated January 12, 2023; May 8, 2023; August 3, 2023; January 10, 2024;

May 15, 2024; and the plaintiff having failed to offer any justification for such conduct; it is

hereby

ORDERED that defendant's motion is granted as follows:

ORDERED that the issue of seriousness or permanence of the injury as would be

contemplated by the orthopedic IME shall be deemed to be resolved in favor of defendant unless,

the plaintiff appears for the orthopedic IME by January 17, 2025; and it is further

ORDERED that, within 20 days from entry of this order, defendant shall serve a copy of

this order with notice of entry on plaintiff and the Clerk of the General Clerk's Office (60 Centre

Street, Room 119); and it is further

ORDERED that such service upon the Clerk shall be made in accordance with the

procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically

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Filed Cases (accessible at the "E-Filing" page on the court's website at the address

www.nycourts.gov/supctmanh).

This constitutes the decision and order of the court.

11/26/2024 DATE

~ CHECK ONE: CASE DISPOSED NON- AL DISPO

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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