Papers Numbered

Sequence No.004

Order to Show Cause, Affidavit, Affirmation & Exhibits .............................. 1

Sequence #005

Notice of Cross Motion, Affidavit, Affirmation & Exhibits ........................... 2

Affirmation in Further Support and In Opposition .......................................... 3

Reply Affidavit ................................................................................................ 4

Upon the foregoing papers, it is ordered that this motion is decided as follows:

Defendant seeks an order: (a) vacating the So Ordered Memorandum, dated December 22, 2010, which was issued sua sponte by the Court; (b) vacating the Note of Issue, dated January 28, 2011, which was served and filed by Plaintiff's attorneys; ( c) scheduling depositions of the parties and permitting additional document discovery thereafter; and (d) extending Defendant's time to serve and file a Statement of Proposed Disposition.

Plaintiff opposes said application and cross moves for an order: a) denying the Defendant's Order to Show Cause dated February 22, 2011 in its entirety; and (b) directing the Defendant to reimburse the Plaintiff for any and all legal fees she incurs to defend the Defendant's Order to Show Cause.

Plaintiff commenced an action for divorce on or about November 12, 2009 by the filing of a Summons with Notice with the Nassau County Clerk. Thereafter, on February 11, 2010 the parties and respective counsel appeared for a preliminary conference, resulting in a preliminary conference order on the same dated ("Order"). Grounds, custody and visitation are resolved.

The Order, provided, inter alia, as follows:

(1)Discovery Deadline

The Court orders the following discovery:

A.Notice for Discovery and Inspection to be served by both the Plaintiff and Defendant by March 12, 2010 and responses are due by April 14, 2010.

C.Depositions on or before May 15, 2010 by the Plaintiff and Defendant.

In the instant motion, the Defendant claims they have tried to obtain discovery from the Plaintiff. The Defendant claims that its notices for discovery were served almost a year ago, but the Plaintiff has not been cooperative. However, conspicuously absent from Defendant's affidavit and affirmation is any reference to the implementation of the procedures set forth in the CPLR regarding a parties failure to comply with discovery demands. More to the point, discovery was ordered to be completed almost a year ago and except for the instant application, the Defendant has not made any applications to this Court for an order compelling the Plaintiff to comply with discovery or to preclude same.

In an effort to progress matrimonial actions to their conclusions, this Court in its decision dated December 22, 2010, sua sponte, certified this matter for trial after determining that this Court's prior Order provided for discovery to be completed by April 2010 and since over seven months had passed from that date with no discovery motions pending, certification was the next logical step to progress this matter to conclusion.

Furthermore, NYCRR §202.16(f)(3) provides in relevant part:

"The court shall fix a schedule for discovery to all unresolved issues and, in a non-complex case, shall schedule a date for trial not later than six months from the date of the conference."

In addition to the foregoing, the Defendant never sought to stay, extend, modify or seek any other form of relief from the Order prior to the expiration of the time period set forth in this Court's Order. Instead the Defendant chose to ignore the Order and offers no credible reason for Defendant's non-compliance with same. Simply stated, Defendant's failure to avail itself of the appropriate procedural remedies and sleep on its rights is no excuse for failing to comply with court orders. To allow this type of lackadaisical conduct will only encourage and add to more delays and expenses to litigants anxious to conclude their matrimonial action and add additional work to a judicial system [*3]that is already over taxed.

As stated by the Court of Appeals as recent as a few months ago in Gibbs v. St. Barnabas Hospital, 16 NY3d 74, 81, 917 NYS2d 68, 72 (2010).

As this Court has repeatedly emphasized, our court system is dependent on all parties engaged in litigation abiding by the rules of proper practice (see e.g. Brill v City of New York, 2 NY3d 648 [2004]; Kihl v Pfeffer, 94 NY2d 118 [1999]). The failure to comply with deadlines not only impairs the efficient functioning of the courts and the adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent. Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution. Furthermore, those lawyers who engage their best efforts to comply with practice rules are also effectively penalized because they must somehow explain to their clients why they cannot secure timely responses from recalcitrant adversaries, which leads to the erosion of their attorney-client relationships as well. For these reasons, it is important to adhere to the position we declared a decade ago that "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity" (Kihl, 94 NY2d at 123).

Plaintiff's application for counsel fees is DENIED with leave to renew upon appropriate papers including an affidavit of Plaintiff, an updated Statement of Net Worth and a copy of the Retainer Agreement.

Accordingly, it is hereby:

ORDERED that the parties and their counsel are ordered to appear before this Court in IAS Part 24, located at 400 County Seat Drive, Mineola, New York, at 9:30 a.m. on May 23, 2011 for a PRE TRIAL conference and TRIAL will commence on August 23, 2011 which dates shall not be adjourned without consent of this Court; and it is further

ORDERED that counsel is directed to comply with IAS Part 24- Rules & Procedures (revised 1/03/11), Section VI.

All matters not decided herein are DENIED.

This constitutes the decision and order of this Court.

Dated:May 4, 2011

Mineola, New YorkE N T E R:

______________________________

Hon. Robert A. Bruno, J.S.C.