Defendant Mohammed Alamgir (hereinafter "Alamgir) moves for an Order pursuant to the Civil Practice Law and Rules Secs. 3212 and 3211 (a)(7) granting the moving defendant summary judgment and dismissing the action as to defendant Alamgir, as no prima facie case of negligence has been established against him; and pursuant to Civil Practice Law and Rules Secs. 3212 and 3211 granting the moving defendant summary judgment dismissing the action because plaintiff has not sustained a serious injury. This action arises from a motor vehicle accident that occurred on January 25, 2003 at approximately 8:20 am on the Brooklyn-Queens Expressway in Brooklyn, New York. Plaintiff was a passenger in a vehicle operated by the moving defendant Alamgir that was rear-ended by co-defendant's vehicle.

Plaintiff contends that since the Note of Issue was filed in this matter on September 6, 2006, defendant Alamgir's motion is untimely because it was not filed until November 17, 2006, which is more than sixty days after the filing of the Note of Issue. Plaintiff submitted an affirmation of service by plaintiff's counsel asserting that the Notice of Issue was served on September 6, 2006, at the movant's attorney's new address (although the Court notes that a different address is set forth in the Note of Issue). The movant contends that the affirmation is defective in that it is not dated or notarized and there is no Note of Issue or Certificate of Trial readiness which has been filed, which accurately reflects the current address of the movant's attorney. Further, movant contends that plaintiff did not comply with certain discovery requests which were outstanding at the time the Note of Issue was filed. Movant sought to vacate the Note of Issue and moved for that relief on October 24, 2006. On that day, plaintiff served [*2]opposition papers that contained the requested discovery and so the motion to strike was withdrawn. Inadvertently, movant failed to bring to the Court's attention that within that motion was a request to extend movant's time within which to move for summary judgment based on the plaintiff's failure to timely comply with the discovery demands. Since the submitted papers do not clearly establish that defendant Alamgir's counsel was properly served with the Note of Issue nor that discovery had been timely completed at the time of the filing, in addition to the fact that the motion was served shortly after the expiration of the sixty day period, the defendant Alamgir has established "good cause" for the late filing of the motion for summary judgment (see Kunz v. Gleeson, 9AD3d 781 [2nd Dept. 2004].

What defendant Alamgir has not established is his right to bring on the motion in the first instance. Defendant Alamgir was inexplicably never produced for deposition. As a result, he is precluded from testifying in the trial of this matter pursuant to the Civil Practice Law and Rules Section 3126. Having been precluded, defendant Alamgir is prevented from affirmatively exploiting or benefitting from his decision to make himself unavailable during the discovery period of the civil action. Oak Beach Inn Corp. v. Babylon Beacon, Inc., 62 NY2d 158. As so aptly stated by Justice Paul A. Victor in the recent case of Wilson v. City of New York, N.Y.L.J. June 29, 2007, p. 26 col. 3, "dilatory tactics, evasive conduct and/or a pattern of non-compliance with discovery and disclosure obligations may give rise to an inference of wilful and contumacious conduct and may result in severe adverse consequences and sanctions" (citing to cases contained therein).

In the case at bar, the movant's request for summary judgment should be denied since some of the information that would assist the opponents in this action is well known only to the non-compliant movant. There is testimony in the record that defendant Alamgir was conversing on a cell phone at the time of the accident. In response to that claim, defendant Alamgir alleges that there is insufficient evidence to establish an issue of fact regarding his own liability since there is absolutely no testimony or evidence tending to show that defendant Alamgir was distracted at the time of the accident. Obviously, since that evidence is primarily within the knowledge and information of the non-compliant movant! If defendant Alamgir were granted summary judgment on liability, clearly he would be rewarded for flouting the orders of the Court.

The second part of movant's motion seeks a dismissal of the lawsuit based on the claim that plaintiff has not sustained a serious injury pursuant to the Insurance Law Sec 5102. One can assume that the movant would argue that his failure to appear for deposition did not affect the availability of evidence relevant to the injury.

But it is important for the Court to consider the broader implications of movant's decision to ignore the prior Court orders. The statutory scheme for sanctioning non-compliant parties as well as the relevant case law, give a Judge discretion to enter judgement against a party who does not comply with Court orders and discovery schemes. In Reynolds Securi., inc. v. [*3]Underwriters Bank and Trust Co., 44 NY2d 568, the Court of Appeals noted that the defendant, who wilfully failed to appear for scheduled depositions, "[did] not, and indeed cannot, successfully quarrel with the order, to the extent that it struck the answer and directed the entry of a default judgment on the issue of liability, for the Court was more than eminently justified in following that course." See also Kihl v. Pfeffer, 94 NY2d 118. (Affirming an Order striking the complaint after plaintiffs failed to answer interrogatories by the Court ordered deadline). This drastic measure is sustainable because of the detriment that non-compliant litigants can have on the integrity of the Courts:

If the credibility of Court order and the integrity of our judicial system areto be maintained, a litigant cannot ignore court orders with impunity.

Indeed, the Legislature, recognizing the need for Courts to be able

to command compliance with their disclosure directives, has specifically

provided that a Court may make such orders...as are just'...

Id.(quoting the Civil Practice Law and Rules Sec. 3126.

Similar case law has issued from the Court of Appeals when it issued its decision in Brill v. City of New York, 2 NY3d 648 and determined that even though a motion for summary judgment has merit, it cannot be considered if it is filed after the statutory deadline of 120 days after the filing of the Note of Issue. In that case, it was clear that the plaintiff failed to establish that the defendant had notice of the defect prior to the date of the accident, a non-waivable and serious defect in the plaintiff's case. However, because the defendant City failed to raise the issue within the requisite time limits, the motion was denied. The Court of Appeals was very clear in its decision when it determined that failure to comply with statutory rules and/or time limits can adversely affect a litigant's rights within the lawsuit.

Defendant Alamgir's failure to appear for scheduled depositions poses no less of a threat to the integrity of our judicial system than did the situations presented in Reynolds, Kihl and Brill, supra. While the testimony that movant would have offered may not have touched on the issue concerning the severity of plaintiff's injury, granting this non-compliant movant summary judgment on this ground would encourage troublesome and contumacious conduct. A party who is able to predicate a successful summary judgment motion on an element or issue that is unrelated to disclosure orders with which there is no compliance, would be able to ignore those orders, perhaps suffer a possible court imposed sanction, yet still enjoy judgment in his/her favor without going to trial. This is precisely what granting the movant's motion of summary judgment would accomplish: having predicated his motion on both the question of liability and the claim that no serious injury was suffered by the plaintiff, movant is attempting to avoid a trial, unscathed by any serious sanctions that resulted from his wilful and openly defiant failure to comply with court orders. While summary judgment is a useful tool for eliminating meritless claims, it should be reserved for litigants who do not flout the authority of the court during the pre-trial stages of litigation. The basic rule of litigation must be upheld: Follow the Orders of the Court or be subjected to sanctions that uphold the integrity of the judicial system.

Based on the foregoing, defendant Alamgir's motion for an order granting him summary judgment is denied.

This constitutes the decision and Order of the Court.

Enter:

______________________________

Laura L. Jacobson, JSC.