The following e-filed documents, listed by NYSCEF document number (Motion 006) 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89 were read on this motion to/for DISMISSAL. DECISION ORDER ON MOTION Upon the foregoing documents, it is granted to the extent that Plaintiff Debra Cascardo’s (“Plaintiff”) complaint is hereby stricken and the case is dismissed with prejudice as against Defendant Joshua Dratel Esq., individually and as senior partner of the Law Offices of Joshua L. Dratel, P.C., Lindsey Lewis, Esq., individually and as an associate in the Law Offices of Joshua L. Dratel, P.C., Whitney Schlimbach Esq., individually and as an associate of Law Offices of Joshua L. Dratel, P.C. (collectively referred to as “Defendants”). Defendants move to dismiss Plaintiff’s complaint in its entirety with prejudice as against Defendants pursuant to CPLR 3216 and 3126(3) for Plaintiff’s repeated failure to provide any discovery, or to preclude Plaintiff from introducing the evidence at trial, or in the alternative, to compel disclosure within a time certain to be set by the court. Plaintiff failed to oppose the motion and the time to do so has long since passed. Plaintiff’s Amended Verified Complaint, filed on April 17, 20181, alleged claims against Defendants for legal malpractice, breach of contract, fraud, breach of fiduciary duty and excessive legal fees in connection with Defendants’ representation of Plaintiff on an ERISA matter. The majority of Plaintiff’s claims were dismissed by this court and the Appellate Division, First Department and only her claim for excessive legal fees remain. Plaintiff’s claim for excessive fees and unsupported legal bills include allegations that Defendants improperly demanded an additional $10,000 in excess of the $15,000 retainer fee and that such fees were excessive and bore no rational relationship to the product delivered. Plaintiff alleged that Defendants refused to provide her with the underlying details of the bill when she complained and dropped her as a client without filing the complaint prior to the expiration of the statute of limitations. Plaintiff further alleged that Defendants only produced a draft complaint that was identical to the complaint that was prepared by her previous attorney. Additionally, Plaintiff claimed that she suffered damages in excess of $500,000 which she would have received on her successful ERISA claim had Defendants filed the complaint. She also claimed that Defendants are not entitled to the fees she already paid, nor are they entitled to collect the additional fees they billed. Over the past three years, Plaintiff has repeatedly refused to comply with Defendants’ numerous requests and multiple court orders to provide Defendants with authorizations for copies of the files from Plaintiff’s previous ERISA attorney and forensic accountant which is relevant to her claim that Defendants copied documents from those files, duplicated research performed by prior counsel, and billed for the work. Where a party “willfully fails to disclose information which the court finds ought to have been disclosed,” the court may strike pleadings or parts thereof, dismiss the action or any part thereof or enter a default judgment against the insubordinate party (CPLR 3126[3]). Although actions should be disposed of on the merits whenever possible, the court may strike a pleadings as a sanction against a party who refuses to obey an order for disclosure (Reidel v. Ryder TRS, Inc., 13 AD3d 170, 171 [1st Dept 2004]). A Plaintiff’s long continued pattern of noncompliance with court orders and discovery demands give rise to an inference of willful and contumacious conduct (Jones v. Green, 34 AD3d 260, 261 [1st Dept 2006] citing Goldstein v. CIBC World Markets Corp., 30 AD3d 217 [1st Dept 2006]; see Perez v. City of New York, 95 AD3d 675, 676 [1st Dept 2012]). Here, Defendants demonstrated that Plaintiff’s continued pattern of noncompliance with court orders and discovery demands over a three year period was willful, contumacious, and in bad faith. Since Plaintiff failed to offer a reasonable excuse and failed to oppose Defendant’s motion to dismiss, the court determines that the striking of Plaintiff’s pleadings and dismissal of her Amended Verified Complaint is the appropriate sanction. The court previously ordered Plaintiff to provide authorizations for Defendants to obtain the files of Plaintiff’s prior attorney and forensic accountant on six separate occasions in the following orders: 1) Preliminary Conference Order dated May 15, 2018, without a deadline, 2) Compliance Conference Order dated October 2, 2018, within twenty (20) days; 3) Status Conference Order dated June 4, 2019, by July 1, 2019; 4) Status Conference Order dated August 6, 2019, by September 3, 2019; 5) Oral Arguments on June 24, 2020, by July 20, 2020, and 6) Decision and Order dated August 12, 2020, by August 27, 2020. In addition to the above-mentioned conferences, Defendants also requested the authorizations to no avail on August 10, 2018, September 27, 2018, and March 19, 2019. Most notably, in an Order dated August 12, 2020, which was filed via NYSCEF the next day, the court granted Defendant’s motion to compel and ordered Plaintiff to provide Defendants with an authorization for the production of the legal file from Plaintiff’s prior ERISA attorney within fourteen days after the Order was uploaded to NYSCEF and ordered that such failure to comply with the order may result in sanctions such as striking of the pleadings. Defendants moved for dismissal for failure to prosecute and failure to provide necessary discovery, pursuant to CPLR 3216 and 3126(3), respectively. However, CPLR 3216 precludes dismissal for failure to prosecute unless Defendants served Plaintiff with a 90-day demand requiring Plaintiff to resume prosecution. Defendants failed to demonstrate that they complied with this requirement, so the court denies dismissal of Plaintiff’s Amended Verified Complaint for failure to prosecute. However, the court grants Defendants motion to dismiss Plaintiff’s Amended Verified Complaint and strikes Plaintiffs pleadings for Plaintiff’s continued failure to provide the authorizations for Defendants to obtain the files from her previous ERISA attorney and forensic accountant. Plaintiff repeatedly disobeyed court orders without providing sufficient explanations and she failed to properly object to Defendants’ discovery demands and repeated requests. The court must hold Plaintiff accountable for her repeated and continued failure to comply with court orders, particularly since the court previously granted Defendants’ motion to compel and ordered that if Plaintiff failed to comply by the deadline, then the court may strike her pleadings. As such, the court grants Defendants’ motion to strike Plaintiffs pleadings and dismisses Plaintiff’s Amended Verified Complaint with prejudice. Therefore, in accordance with the foregoing, it is hereby ORDERED that the court grants Defendant’s motion to dismiss in that the court strikes Plaintiff’s pleadings and dismisses Plaintiff’s Amended Verified Complaint with prejudice; and it is further ORDERED that this constitutes the decision and order of this court. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: March 4, 2021
