Preview
FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/10/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX, PART: 03
-------------------------------------------------------------------X
BROOKS,NADINE Index No. 0305540/2012
-against- Hon. MITCHELL J. DANZIGER,
DELMORE,SHAWN Justice Supreme Court
_____--------------------.-----..-------------------------------..-x
The following papers numbered 1 to Read on this motion, (Seq. No. 2) for
STRIKE COMPLAINT, noticed on September 14 2018 .
Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed No(s).
Answering Affidavit and Exhibits No(s).
Replying Affidavit and Exhibits No(s).
Upon the foregoing papers, it is ordered that this motion is
8
ANTED AS
ORDER
OPANNEXED
O
Dated: Hon.
MITCHELL J. DANZIGER, J.S.C.
________________________________-________________________________________________________________----___-------
1. CHECK ONE............................................ O CASE DISPOSED IN ITS ENTIRETY O CASE STILL ACTIVE
2. MOTION IS.............................................. O GRANTED O DENIED O GRANTED IN PART O OTHER
3. CHECK IF APPROPRIATE..................... O SETTLE ORDER O SUBMIT ORDER O SCHEDULE APPEARANCE
O FIDUCIARY APPOINTMENT O REFEREE APPOINTMENT
FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/10/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX NDIVIDUAL ASSIGNMENT PART
X
d¼ byw/ 3 STIPULATION
'
L/ Index No. 3 O .2--
Mot. Cai.No.
Date /O
IT IS HEREBY S y and between the below-named attomey(s) as follows:
C s nn ch ovi is veso)v ec) cts 4'onow
@T acpeY +o w.-40 no sucw h. Rab
p
o-
C N / 1'wl W n Le D dou 5
Date:
So Ordered.
Attom for Defendant
ENTER:
J. .C. Attomey for Defendant
SC. NO. 8G Rev. 3/86
FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/10/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
________________________________------------________________________Ç
NADINE BROOKS,
STIPULATION TO
Plaintiff, ADJOURN
-against-
Index No. 305540/2012
SHAWN DELMORE, CAPRI LANDSCAPING, INC., File No. 2012-031424
City
and THE CITY OF NEW YORK,
Defendants.
---------______--------____________----------_______________________Ç
It is hereby stipulated and agreed by and between the undersigned, the attorneys of record
for plaintiff and the defendants to the above entitled action, that City's motions currently
returnable September 20, 2018 and September 28, 2018 are adjourned on mutual consent to
October 18, 2018.
A facsimile copy of the signatures and of this stipulation can be considered the same as
an original for the purposes of this stipulation. This stipulation may be filed without further
notice with the Clerk of the Court.
Dated: Bronx, New York
September 17, 2018
LAW OFFICES OF JASON A. GREENBERG, ZACHARY W. CARTER
P.C. Corporation Counsel
Attorneys for Plaintiff Attorney for Defendant,
350 South Ocean Ave, Suite 205 The City of New York
Freeport, New York 11520 198 East 161st, Third Floor
Bronx, New York 10451
FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E
NYSCEF DOC. NO. 22
4 "
RECEIVED NYSCEF: 01/10/2023
MS
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
_________________________________--___________________________--_______ x
NADINE BROOKS,
NOTICE OF MOTION
Plaintiff
Index No. 305540/2012
- against -
City File No. 2012-031424
SHAWN DELMORE, CAPRI LANDSCAPING, INC., and
THE CITY OF NEW YORK,
Defendants.
_________----___________________________________________________________Ç
PLEASE TAKE NOTICE, that upon the annexed affirmation of STEPHANIE R.
JOHNSON, dated August 7, 2018 the exhibits annexed thereto, and all of the papers, pleadings
and proceedings heretofore had and filed herein, municipal.defendant, THE CITY OF NEW
YORK (hereinafter the "City"), will move this Court before Honorable Mitchell J. Danziger in
IAS, Part 3, Room 707 at the Courthouse located at 851 Grand Concourse, Bronx, New York, on
September 14, 2018 at 970 a.m. in the forenoon, or as soon thereafter as counsel can be heard:
1. Pursuant to CPLR 3126, dismissing plaintiff's complaint and/or precluding
plaintiff from offering any evidence at trial, on the ground that plaintiff has failed to comply with
outstanding discovery and/or for costs for not appearing at the court ordered medical
examinations; and/or
2. Pursuant to CPLR 3124, compelling plaintiff to appear for an Independent
Medical Examination;
3. For such other and further relief as this Court may deem just and proper.
The above action is to recover damages for personal injuries.
FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/10/2023
QaN3OakL
FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/10/2023
" "
No prior application for dismissal or preclusion requested herein has previously been
made.
PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR 2214(b), answering
papers, if any, are to be served upon the undersigned at least seven (7) days prior to the return
date hereof.
Dated: Bronx, New York
August 7, 2018
Yours etc.,
ZACHARY W. CARTER
Corporation Counsel
Attorney for Defendant
City of New York
100 Church Street
New York, New York 10007
STEPH NIE R. JOHNS SQ.
Assistant Corporation Counsel
Please send all replies to:
198 East 161st Street, Third Floor
Bronx, New York 10451
TO: LAW OFFICES OF JASON A. GREENBERG, P.C.
Attorneys for Plaintiff
393 Jericho Turnpike, Suite 208
Mineola, New York 11501
SHAWN DELMORE
PRO SE DEFENDANT
1371 Prospect Avenue
Bronx, New York 10459
3
FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/10/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
------____________________________________________________________Ç
NADINE BROOKS,
AFFIRMATION IN SUPPORT
Plaintiff,
Index No. 305540/2012
- against -
City File No. 2012-031424
SHAWN DELMORE, CAPRI LANDSCAPING,
INC., and THE CITY OF NEW YORK,
Defendants.
___-----___----________________________-----_____________________Ç
STEPHANIE R. JOHNSON, an attorney admitted to practice in the State of New York
and an Assistant Corporation Counsel of the City of New York affirms the truth of the following
under the penalties of perjury pursuant to CPLR 2106 upon information and belief based upon
the records maintained in this office:
1. This affirmation is submitted in support of the motion of defendant, THE
CITY OF NEW YORK (hereinafter the "City"), for an Order: (1) pursuant to CPLR 3126,
dismissing plaintiff's complaint and/or precluding plaintiff from offering any evidence at trial,
on the ground that plaintiff has failed to comply with outstanding discovery and/or for costs for
not appearing at the court ordered medical examinations; and/or (2) pursuant to CPLR 3124,
compelling plaintiff to appear for Independent Medical Examination; and (3) for such other and
further relief as this Court may deem just and proper.
2. This is an action to recover damages for personal injuries allegedly
sustained by plaintiff on March 29, 2011, when she allegedly tripped and fell on a sidewalk at
1371 Prospect Avenue, Bronx, New York. See Notice of Claim annexed hereto as Exhibit A.
4
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NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/10/2023
" "
RELEVANT PROCEDURAL HISTORY
3. On or about May 9, 2011, plaintiff served the Notice of Claim on the City.
See Exhibit A.
4. Plaintiff commenced this action by the purchase of an index number and
the filing of a summons and verified complaint with the Bronx County Clerk's Office on June
26, 2012. The City joined issue on August 7, 2012 with service of its answer. See Pleadings
annexed hereto as Exhibit B.
5. A Preliminary Conference was held on June 23, 2015, and the parties
entered into a Preliminary Conference Order. See Preliminary Conference Order annexed
hereto as Exhibit C.
6. A Compliance Conference was held on July 26, 2016, and the parties
entered into a Compliance Conference Order, ordering, amongst other discovery, for "defendant
to designate physician(s) in writing by 60 days after the EBT and for an examination to be held
designation."
by 60 days after See Compliance Conference Order annexed hereto as Exhibit D.
4. The City designated a doctor for the physical examination within the court
ordered time period. See Medical Examiner Notifications annexed hereto as Exhibit E. The City
designated Dr. Jeffrey Salkin for March 28, 2017 for plaintiff. Id. A letter was sent to Plaintiff
on March 15, 2017. Id. Plaintiff did not appear. Once again, the City designated Dr. Jeffrey
Salkin for April 20, 2017 for plaintiff. Id. A letter was sent to Plaintiff on March 31, 2017. Id.
Plaintiff did not appear. Due to plaintiff's failure to appear for the appointments the City was
fined with a $60 No-Show fee. See Invoice attached hereto as Exhibit F.
5. A status conference was scheduled for August 6, 2018. The City had
intended on speaking with the plaintiff's counsel and putting language in the status conference
5
FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/10/2023
order directing plaintiff to appear for a physical examination; however, all parties were not
present and the status conference was adjourned to October 1, 2018. See Court Alert annexed
hereto as Exhibit G.
6. To date, your Affirmant has not received a phone call, letter, or fax from
plaintiff's counsel to either discuss an explanation regarding plaintiff's failure to appear for the
physical examinations or an attempt to schedule a new appointment. Thus the plaintiff must still
appear for a physical examination by Dr. Jeffrey Salkin and the City is forced to seek judicial
intervention.
ARGUMENTS
POINT I
PURSUANT TO CPLR 3126, PLAINTIFF'S
COMPLAINT SHOULD BE DISMISSED
AND/OR PLAINTIFF SHOULD BE
PRECLUDED FROM OFFERING ANY
PLAINTIFFS'
EVIDENCE AT TRIAL DUE TO
WILLFUL AND CONTUMACIOUS FAILURE
TO COMPLY WITH OUTSTANDING
DISCOVERY.
7. Dismissal of a complaint is appropriate where the plaintiff fails to comply
with discovery demands and prior court orders. "If any party . . . refuses to obey an order for
disclosure or willfully fails to disclose information which the court finds ought to have been
action."
disclosed pursuant to this article, the court may make . . . an order . . . dismissing the
CPLR 3126(3). The Court of Appeals has held that "when a party fails to comply with a court
order and frustrates the disclosure scheme set forth in the CPLR, it is well within the Trial
complaint."
Judge's discretion to dismiss the Kihl v. Pfeffer, 94 N.Y.2d 118, 122 (1999)
(dismissing the complaint for failing to respond to interrogatories); see also O'Brien v.
Occidental Chem. Corp., 266 A.D.2d 915 (4th Dep't 1999) (dismissing a complaint because
6
FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/10/2023
" "
plaintiffs failed to with 1996 case scheduling order, engaged in dilatory tactics regarding
comply
interrogatories and medical authorizations, and made incomplete or erroneous responses to
reasonable requests); Frias v. Fortini, 240 A.D.2d 467 (2d Dep't 1997) (dismissing
discovery
complaint for failure to comply with discovery demand held proper where plaintiffs failed to
give reasonable excuse for its failure to provide medical authorizations in full compliance with
defendants'
discovery demand, and despite issuance of two prior court orders directing
compliance with outstanding demand).
8. CPLR 3126 empowers the Court with the discretion to impose sanctions if
it finds that "any party . . . refuses to obey an order for disclosure or willfully fails to disclose
."
information which the court finds ought to have been disclosed . . . Thus, jurisprudence in
relation to CPLR 3126 and the failure to provide CPLR Article 31 discovery is neither
inapplicable nor inappropriate for a discussion of the sanctions warranted for a protracted and
unexplained failure to comply with a compliance conference order.
adversaries'
9. Harsh treatment of parties who interminably ignore their
demands is eminently appropriate. Professor Siegel has written:
Judge reluctance to make free use of severe
sanctions such as those presently listed in CPLR
3126 . . . is a residuum of the common law hostility
for open pretrial disclosure . . . The attitude is at
war with the CPLR and it, more than anything else,
accounts for the high number of disclosure
applications on the motion calendars. The judges
lament this overload; yet it may be, ironically, that
the primary fault is their own willingness to give the
parties repeated chances to make disclosure . . .
The present system, it is submitted, is too tolerant of
the deliberately evasive and dilatory litigant,
increasing the expense of litigation in money, time,
trouble, and feeling, and, consequently, helping to
undermine public confidence in the courts.
D. Siegel, New York Practice §367 (1978).
7
FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/10/2023
" "
and of strict sanctions for "unconscionable and
10. The propriety necessity
delays" requests has been affirmed. See
unexcused in responding to disclosure repeatedly
New 101 A.D.2d 795 (lst Dep't 1984); Whitler
Applied Electric Corp. v. City of York,
Co. v. City of New York, 101 A.D.2d 795 (1st Dep't 1984).
Contracting
forth the available penalties in New York for refusal to
11. CPLR 3126 sets
with a Court's Order or to disclose. Said section states, in relevant part:
comply
If . . . refuses to obey an order for
any party
disclosure or fails to disclose information
willfully
which the court finds ought to have been disclosed
pursuant to this article, the court may make such
orders with regard to the failure or refusal as are
just, among thein:
an order that the issues to which the information is
relevant shall be deemed resolved for purposes of
the action in accordance with the claims of the party
obtaining the order; or
an order prohibiting the disobedient party from
supporting or opposing designated claims or
Preview
FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/10/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX, PART: 03 -------------------------------------------------------------------X BROOKS,NADINE Index No. 0305540/2012 -against- Hon. MITCHELL J. DANZIGER, DELMORE,SHAWN Justice Supreme Court _____--------------------.-----..-------------------------------..-x The following papers numbered 1 to Read on this motion, (Seq. No. 2) for STRIKE COMPLAINT, noticed on September 14 2018 . Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed No(s). Answering Affidavit and Exhibits No(s). Replying Affidavit and Exhibits No(s). Upon the foregoing papers, it is ordered that this motion is 8 ANTED AS ORDER OPANNEXED O Dated: Hon. MITCHELL J. DANZIGER, J.S.C. ________________________________-________________________________________________________________----___------- 1. CHECK ONE............................................ O CASE DISPOSED IN ITS ENTIRETY O CASE STILL ACTIVE 2. MOTION IS.............................................. O GRANTED O DENIED O GRANTED IN PART O OTHER 3. CHECK IF APPROPRIATE..................... O SETTLE ORDER O SUBMIT ORDER O SCHEDULE APPEARANCE O FIDUCIARY APPOINTMENT O REFEREE APPOINTMENT FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/10/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX NDIVIDUAL ASSIGNMENT PART X d¼ byw/ 3 STIPULATION ' L/ Index No. 3 O .2-- Mot. Cai.No. Date /O IT IS HEREBY S y and between the below-named attomey(s) as follows: C s nn ch ovi is veso)v ec) cts 4'onow @T acpeY +o w.-40 no sucw h. Rab p o- C N / 1'wl W n Le D dou 5 Date: So Ordered. Attom for Defendant ENTER: J. .C. Attomey for Defendant SC. NO. 8G Rev. 3/86 FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/10/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ________________________________------------________________________Ç NADINE BROOKS, STIPULATION TO Plaintiff, ADJOURN -against- Index No. 305540/2012 SHAWN DELMORE, CAPRI LANDSCAPING, INC., File No. 2012-031424 City and THE CITY OF NEW YORK, Defendants. ---------______--------____________----------_______________________Ç It is hereby stipulated and agreed by and between the undersigned, the attorneys of record for plaintiff and the defendants to the above entitled action, that City's motions currently returnable September 20, 2018 and September 28, 2018 are adjourned on mutual consent to October 18, 2018. A facsimile copy of the signatures and of this stipulation can be considered the same as an original for the purposes of this stipulation. This stipulation may be filed without further notice with the Clerk of the Court. Dated: Bronx, New York September 17, 2018 LAW OFFICES OF JASON A. GREENBERG, ZACHARY W. CARTER P.C. Corporation Counsel Attorneys for Plaintiff Attorney for Defendant, 350 South Ocean Ave, Suite 205 The City of New York Freeport, New York 11520 198 East 161st, Third Floor Bronx, New York 10451 FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E NYSCEF DOC. NO. 22 4 " RECEIVED NYSCEF: 01/10/2023 MS SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX _________________________________--___________________________--_______ x NADINE BROOKS, NOTICE OF MOTION Plaintiff Index No. 305540/2012 - against - City File No. 2012-031424 SHAWN DELMORE, CAPRI LANDSCAPING, INC., and THE CITY OF NEW YORK, Defendants. _________----___________________________________________________________Ç PLEASE TAKE NOTICE, that upon the annexed affirmation of STEPHANIE R. JOHNSON, dated August 7, 2018 the exhibits annexed thereto, and all of the papers, pleadings and proceedings heretofore had and filed herein, municipal.defendant, THE CITY OF NEW YORK (hereinafter the "City"), will move this Court before Honorable Mitchell J. Danziger in IAS, Part 3, Room 707 at the Courthouse located at 851 Grand Concourse, Bronx, New York, on September 14, 2018 at 970 a.m. in the forenoon, or as soon thereafter as counsel can be heard: 1. Pursuant to CPLR 3126, dismissing plaintiff's complaint and/or precluding plaintiff from offering any evidence at trial, on the ground that plaintiff has failed to comply with outstanding discovery and/or for costs for not appearing at the court ordered medical examinations; and/or 2. Pursuant to CPLR 3124, compelling plaintiff to appear for an Independent Medical Examination; 3. For such other and further relief as this Court may deem just and proper. The above action is to recover damages for personal injuries. FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/10/2023 QaN3OakL FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/10/2023 " " No prior application for dismissal or preclusion requested herein has previously been made. PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR 2214(b), answering papers, if any, are to be served upon the undersigned at least seven (7) days prior to the return date hereof. Dated: Bronx, New York August 7, 2018 Yours etc., ZACHARY W. CARTER Corporation Counsel Attorney for Defendant City of New York 100 Church Street New York, New York 10007 STEPH NIE R. JOHNS SQ. Assistant Corporation Counsel Please send all replies to: 198 East 161st Street, Third Floor Bronx, New York 10451 TO: LAW OFFICES OF JASON A. GREENBERG, P.C. Attorneys for Plaintiff 393 Jericho Turnpike, Suite 208 Mineola, New York 11501 SHAWN DELMORE PRO SE DEFENDANT 1371 Prospect Avenue Bronx, New York 10459 3 FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/10/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ------____________________________________________________________Ç NADINE BROOKS, AFFIRMATION IN SUPPORT Plaintiff, Index No. 305540/2012 - against - City File No. 2012-031424 SHAWN DELMORE, CAPRI LANDSCAPING, INC., and THE CITY OF NEW YORK, Defendants. ___-----___----________________________-----_____________________Ç STEPHANIE R. JOHNSON, an attorney admitted to practice in the State of New York and an Assistant Corporation Counsel of the City of New York affirms the truth of the following under the penalties of perjury pursuant to CPLR 2106 upon information and belief based upon the records maintained in this office: 1. This affirmation is submitted in support of the motion of defendant, THE CITY OF NEW YORK (hereinafter the "City"), for an Order: (1) pursuant to CPLR 3126, dismissing plaintiff's complaint and/or precluding plaintiff from offering any evidence at trial, on the ground that plaintiff has failed to comply with outstanding discovery and/or for costs for not appearing at the court ordered medical examinations; and/or (2) pursuant to CPLR 3124, compelling plaintiff to appear for Independent Medical Examination; and (3) for such other and further relief as this Court may deem just and proper. 2. This is an action to recover damages for personal injuries allegedly sustained by plaintiff on March 29, 2011, when she allegedly tripped and fell on a sidewalk at 1371 Prospect Avenue, Bronx, New York. See Notice of Claim annexed hereto as Exhibit A. 4 FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/10/2023 " " RELEVANT PROCEDURAL HISTORY 3. On or about May 9, 2011, plaintiff served the Notice of Claim on the City. See Exhibit A. 4. Plaintiff commenced this action by the purchase of an index number and the filing of a summons and verified complaint with the Bronx County Clerk's Office on June 26, 2012. The City joined issue on August 7, 2012 with service of its answer. See Pleadings annexed hereto as Exhibit B. 5. A Preliminary Conference was held on June 23, 2015, and the parties entered into a Preliminary Conference Order. See Preliminary Conference Order annexed hereto as Exhibit C. 6. A Compliance Conference was held on July 26, 2016, and the parties entered into a Compliance Conference Order, ordering, amongst other discovery, for "defendant to designate physician(s) in writing by 60 days after the EBT and for an examination to be held designation." by 60 days after See Compliance Conference Order annexed hereto as Exhibit D. 4. The City designated a doctor for the physical examination within the court ordered time period. See Medical Examiner Notifications annexed hereto as Exhibit E. The City designated Dr. Jeffrey Salkin for March 28, 2017 for plaintiff. Id. A letter was sent to Plaintiff on March 15, 2017. Id. Plaintiff did not appear. Once again, the City designated Dr. Jeffrey Salkin for April 20, 2017 for plaintiff. Id. A letter was sent to Plaintiff on March 31, 2017. Id. Plaintiff did not appear. Due to plaintiff's failure to appear for the appointments the City was fined with a $60 No-Show fee. See Invoice attached hereto as Exhibit F. 5. A status conference was scheduled for August 6, 2018. The City had intended on speaking with the plaintiff's counsel and putting language in the status conference 5 FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/10/2023 order directing plaintiff to appear for a physical examination; however, all parties were not present and the status conference was adjourned to October 1, 2018. See Court Alert annexed hereto as Exhibit G. 6. To date, your Affirmant has not received a phone call, letter, or fax from plaintiff's counsel to either discuss an explanation regarding plaintiff's failure to appear for the physical examinations or an attempt to schedule a new appointment. Thus the plaintiff must still appear for a physical examination by Dr. Jeffrey Salkin and the City is forced to seek judicial intervention. ARGUMENTS POINT I PURSUANT TO CPLR 3126, PLAINTIFF'S COMPLAINT SHOULD BE DISMISSED AND/OR PLAINTIFF SHOULD BE PRECLUDED FROM OFFERING ANY PLAINTIFFS' EVIDENCE AT TRIAL DUE TO WILLFUL AND CONTUMACIOUS FAILURE TO COMPLY WITH OUTSTANDING DISCOVERY. 7. Dismissal of a complaint is appropriate where the plaintiff fails to comply with discovery demands and prior court orders. "If any party . . . refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been action." disclosed pursuant to this article, the court may make . . . an order . . . dismissing the CPLR 3126(3). The Court of Appeals has held that "when a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is well within the Trial complaint." Judge's discretion to dismiss the Kihl v. Pfeffer, 94 N.Y.2d 118, 122 (1999) (dismissing the complaint for failing to respond to interrogatories); see also O'Brien v. Occidental Chem. Corp., 266 A.D.2d 915 (4th Dep't 1999) (dismissing a complaint because 6 FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/10/2023 " " plaintiffs failed to with 1996 case scheduling order, engaged in dilatory tactics regarding comply interrogatories and medical authorizations, and made incomplete or erroneous responses to reasonable requests); Frias v. Fortini, 240 A.D.2d 467 (2d Dep't 1997) (dismissing discovery complaint for failure to comply with discovery demand held proper where plaintiffs failed to give reasonable excuse for its failure to provide medical authorizations in full compliance with defendants' discovery demand, and despite issuance of two prior court orders directing compliance with outstanding demand). 8. CPLR 3126 empowers the Court with the discretion to impose sanctions if it finds that "any party . . . refuses to obey an order for disclosure or willfully fails to disclose ." information which the court finds ought to have been disclosed . . . Thus, jurisprudence in relation to CPLR 3126 and the failure to provide CPLR Article 31 discovery is neither inapplicable nor inappropriate for a discussion of the sanctions warranted for a protracted and unexplained failure to comply with a compliance conference order. adversaries' 9. Harsh treatment of parties who interminably ignore their demands is eminently appropriate. Professor Siegel has written: Judge reluctance to make free use of severe sanctions such as those presently listed in CPLR 3126 . . . is a residuum of the common law hostility for open pretrial disclosure . . . The attitude is at war with the CPLR and it, more than anything else, accounts for the high number of disclosure applications on the motion calendars. The judges lament this overload; yet it may be, ironically, that the primary fault is their own willingness to give the parties repeated chances to make disclosure . . . The present system, it is submitted, is too tolerant of the deliberately evasive and dilatory litigant, increasing the expense of litigation in money, time, trouble, and feeling, and, consequently, helping to undermine public confidence in the courts. D. Siegel, New York Practice §367 (1978). 7 FILED: BRONX COUNTY CLERK 01/10/2023 02:55 PM INDEX NO. 305540/2012E NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/10/2023 " " and of strict sanctions for "unconscionable and 10. The propriety necessity delays" requests has been affirmed. See unexcused in responding to disclosure repeatedly New 101 A.D.2d 795 (lst Dep't 1984); Whitler Applied Electric Corp. v. City of York, Co. v. City of New York, 101 A.D.2d 795 (1st Dep't 1984). Contracting forth the available penalties in New York for refusal to 11. CPLR 3126 sets with a Court's Order or to disclose. Said section states, in relevant part: comply If . . . refuses to obey an order for any party disclosure or fails to disclose information willfully which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among thein: an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or an order prohibiting the disobedient party from supporting or opposing designated claims or