The Second Judicial Department for the Supreme Court of the State of New York, Appellate Division, affirmed the Trial Court’s decision to not vacate the unopposed dismissal of plaintiff’s complaint against defendants for willfully failing to provide discovery. See Yolanda Follors v. TI Ozone Park Storage, LLC, ____ A.D.3d ___ 2022 N.Y. Slip Op. 05842 (2d Dept. 2022). As the Trial Court properly denied the plaintiff’s request to vacate the dismissal of her complaint for not providing a reasonable excuse for plaintiff’s default or a meritorious defense as to why she failed to provide discovery, the Appellate Division affirmed the Order.
In Follors, the plaintiff alleged that, in May of 2018, she tripped and fell due to an uneven sidewalk flag abutting the defendant’s premises thereby sustaining serious personal injury. When the defendant entered an appearance by filing its answer in February of 2019, they also served various discovery demands upon the plaintiff. A couple months thereafter, plaintiff’s then-counsel moved, inter alia, to be relieved as counsel for the plaintiff. About a year after the then-counsel’s motion, the defendant—who still did not receive plaintiff’s discovery responses—moved to dismiss the plaintiff’s complaint for failing to provide discovery which was unopposed by plaintiff. In October 2020, the plaintiff’s attorney again filed a motion to be relieved as counsel for the plaintiff.
After the Trial Court granted defendant’s unopposed motion to dismiss the plaintiff’s complaint, plaintiff moved to vacate the dismissal order and to extend the time to submit opposition, but the Trial Court denied the plaintiff’s motion to vacate the dismissal order finding that the plaintiff failed to present a reasonable excuse for the failure to respond to the pending motion and failed to present a meritorious defense to the pending motion. The Trial Court ultimately found that the plaintiff’s then-counsel’s second motion to be relieved neither requested a stay for responding to discovery nor addressed the defendant’s motion in any manner to warrant vacating the dismissal order or to defeat the dismissal order. The plaintiff then appealed the Trial Court’s denial of their motion to vacate the dismissal and extend plaintiff’s time to submit opposition.
The Appellate Division affirmed the Trial Court’s denial of vacating the order that dismissed the plaintiff’s complaint finding that the Trial Court “properly determined that, even if the plaintiff had demonstrated a reasonable excuse for her default in opposing the defendant’s motion, she failed to establish that she had a potentially meritorious opposition to defendant’s motion.” See Follers. The Appellate Division also referenced that the plaintiff’s extensive delay of more than seventeen (17) months in providing discovery warranted the Trial Court’s finding of plaintiff’s “willful, contumacious, and ... bad faith” in failing to respond to defendant’s discovery demands.
From a defense perspective, Follers teaches us to be specific in responding to all pending motions, specific in relief requested in all pending motions, and to keep track of all outstanding discovery owed or owed by an adversary to avoid a dismissal of claims. Additionally, if a plaintiff is proceeding as a self-represented litigant or with new counsel, the plaintiff is not afforded unlimited time to respond to discovery demands. Therefore, during the course of a litigation, make sure to delineate all deadlines and filings to make sure proper timely responses, whether for pleadings, motions, or discovery, are provided to avoid all adverse action or in support of a dismissal motion for the represented defendant.