Carnegie Associates Ltd. v. Miller

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered October 25, 2010, which granted defendants’ motion to dismiss the complaint and to strike the reply to their counterclaims, and imposed monetary sanctions, modified, on the law, to deny defendant’s motion to dismiss plaintiff’s complaint and reply to defendant’s counterclaims, and otherwise affirmed, without costs. Plaintiffs appeal from the order, same court and Justice, entered December 16, 2010, which, inter alia, denied plaintiffs motion for renewal, unanimously dismissed, without costs, as academic. The motion court erred in striking the complaint and reply to defendants’ counterclaims since neither CPLR 3126 nor 22 NYCRR 202.26 (e) authorizes this sanction under the circumstances. While CPLR 3126 authorizes the striking of a party’s pleadings, this extreme sanction is only authorized when a party “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed” (CPLR 3126 [emphasis added]). Thus, by its express terms the sanction prescribed by CPLR 3126 is warranted only upon a party’s failure to comply with discovery requests or court orders mandating disclosure (Bako v V. T. Trucking Co., 143 AD2d 561 [1988]; Henry Rosenfeld, Inc. v Bower & Gardner, 161 AD2d 374, 374-375 [1990] [dismissal of a party’s pleading appropriate when a party “disobeys a court order and by his conduct frustrates the disclosure scheme provided by the CPLR”]; Bassett v Bando Sangsa Co., 103 AD2d 728, 728 [1984]). Here, where plaintiff had already been sanctioned for its failure to provide discovery and where defendants premised the instant motion to strike plaintiffs pleadings primarily on [405] plaintiff’s failure to proceed with court-ordered mediation, CPLR 3126 simply does not apply. Similarly, despite plaintiffs conceded failure to proceed with the court-ordered mediation, it was also error to strike its pleadings pursuant to 22 NYCRR 202.26 (e). While 22 NYCRR 202.26 authorizes the trial court to schedule pretrial conferences, a mediation, pursuant to rule 3 of the Rules of the Commercial Division of the Supreme Court (22 NYCRR 202.70 [g]), is not a pretrial conference. More importantly, even if this rule did apply, the only sanction authorized by 22 NYCRR 202.26 (e) for a party’s failure to appear at a pretrial conference is “a default under CPLR 3404,” which initially only authorizes the striking of the case from the court’s trial calendar. Accordingly, here, striking plaintiffs pleadings, which by operation of law resulted in dismissal of this action is not warranted pursuant to 22 NYCRR 202.26 (e). While we agree with the dissent that plaintiffs conduct was egregious, we nevertheless find that the sanction imposed by the motion court, namely, dismissal of plaintiffs complaint and the striking of its reply to defendant’s counterclaims was simply not permitted. We further note that, here, plaintiff was in fact penalized for its conduct inasmuch as the motion court granted defendants’ motion for costs and fees incurred as a result of plaintiffs failure to proceed to mediation. In support of its argument that the motion court’s order was appropriate, the dissent partly relies on rule 8 (h) of the Rules of the Alternative Dispute Resolution Program, Commercial Division, Supreme Court, New York County. However, the dissent alone raises this argument, one which has never been advanced by any of the parties, either on appeal or below. Therefore, we should not consider it (Misicki v Caradonna, 12 NY3d 511, 519 [2009] [“We are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made”]). Moreover, contrary to the dissent’s remaining position, rule 12 of the Rules of the Commercial Division of the Supreme Court (22 NYCRR 202.70 [g]) does not avail plaintiff since like 22 NYCRR 202.26 (e), the dismissal promulgated by rule 12, which is made more clear by its reference to 22 NYCRR 202.27, is for the failure to appear at a conference and not for the failure to proceed to mediation. Concur — Sweeny, Moskowitz, Richter and Román, JJ.