Caesar’s wife must be above suspicion; legal malpractice practitioners are subject to greater scrutiny. That is the lot of those who work in the negligence fields. G. Willi-Food Intl. Ltd. v Herzfeld & Rubin, P.C. 2016 NY Slip Op 31625(U) August 26, 2016 Supreme Court, New York County Docket Number: 161053/2014 Judge: Kelly A. O’Neill Levy is the sad example of a legal malpractice case dismissed for discovery failures.
“Plaintiff commenced this action on or about November 6, 2014. The complaint contains allegations of legal malpractice, breach of contract, and breach of fiduciary duty arising out of defendants’ representation of plaintiff in a consolidated action also litigated in Supreme Court, New York County. On March 25, 2015 the parties appeared at a preliminary conference, where a preliminary conference order was signed (Singh, J.) providing that all interrogatories were to be served on or before April 9, 2015, with responses due by May 11, 2015. ”
“On or about January 25, 2016, plaintiff provided a.second response to defendants’ interrogatories. Defendants allege that the second response was still not sufficient pursuant to the order for more particularization. During the parties’ subsequent status conference on February 24, the court ordered, among other things, that plaintiff to provide a copy of its verification to interrogatory responses on or before March 7, 2016 and the original on or before March 14, 2016, in recognition that the verification would be coming from overseas. Plaintiff still has not provided a verification, and according to defendants, has failed to provide particularized responses. As a result, defendants have brought this motion to strike the pleadings, dismiss the complaint, and award attorney’s fees due to plaintiffs failure ~o comply with numerous court orders pursuant to CPLR § 3126. Plaintiff opposes the motion and asserts that it complied with the orders for particularization and is attempting in good faith to satisfy the court’s order for verification.”
“Plaintiffs failure to comply with three court orders, including a conditional order issued on default, made over the course of approximately one year evidences willful and contumacious behavior. See Bryant v. New York City Hous. Auth., 69 AD3d 488, 489 (1st Dep’t 20 I 0). The court provided plaintiff with numerous opportunities to remedy the deficiencies in its discovery responses and it failed to do so, warranting dismissal of the complaint. See FDIC v. Al/city Ins. Co., 228 AD2d 275 (I st Dep’t 1996), Gal-Ed v. I 53rd St Assoc. LLC, 73 AD3d 438, 438-39 (I st Dep’t 2010), Gale v. Delmonico Hotel Co., 260 AD2d 276, 276 (1st Dep’t 1999). Accordingly, the complaint is dismissed pursuant to CPLR 3126. The court declines to grant the remainder of the relief requested. Accordingly, it is · hereby ORDERED t~at the motion is granted to the extent that the complaint is dismissed. The Clerk is directed to enter judgment accordingly. “