The New York Appellate Division, Second Department issued a ruling in favor of a client represented by Montfort, Healy, McGuire, and Salley on February 19, 2020. The firm represented the defendant-respondent in the case, who was accused of having negligently caused injuries to the plaintiff-appellant in a 2007 motor vehicle accident. The case was on appeal after a lower court ruled in our favor to strike the plaintiff’s complaint.
The case in question, Turiano v. Schwaber (2020 NY Slip Op 01200), arose out of a motor vehicle accident that occurred on April 5, 2007, in which the plaintiff alleged the firm’s client had acted negligently. The plaintiff sued our client on December 31, 2007 over injuries she allegedly sustained in the accident, which brought about the beginning of the litigation. An initial deposition of the plaintiff was conducted on October 17, 2008 and went ahead without issue.
However, in May 2012, the plaintiff filed a notice of issue (which was subsequently vacated), with respect to a surgery on her right foot that she underwent in June 2014. The plaintiff alleged that the damage the surgery was intended to repair was caused by the same accident which was the basis for this lawsuit. To that end, a second deposition was scheduled for August 17, 2015, but we were unable to complete the deposition and had to reschedule.
The deposition would again be postponed multiple times, including once in September 2016 after both the plaintiff and her attorney failed to appear without explanation. They also did not appear for the conference that was scheduled three days later. At that point, the court directed the plaintiff and her attorney to appear at a conference on October 13, 2016, which they also failed to attend. After all these failures to appear, we moved to strike the complaint, as the plaintiff either could not or would not appear for a deposition in her own lawsuit.
In a November 2016 appearance, the plaintiff claimed the failure to appear was a result of her attorney’s poor health and claimed a new deposition had been scheduled for January 12, 2017. However, no new deposition had been scheduled that we were aware of, and additionally, the plaintiff failed to submit documentation verifying the attorney’s alleged health problems. As a result, the court struck the complaint, which would have ended her case right there. Unsurprisingly, the plaintiff then appealed the decision to try to preserve her case against dismissal.
On appeal, the Appellate Division gave us a victory, albeit a qualified one. While the court agreed that the conduct of the plaintiff was inappropriate and worthy of sanction, the Appellate Division instead modified the lower court order, determining that striking the complaint was too severe a punishment for simply missing depositions. However, the plaintiff was precluded from introducing evidence related to the foot injury that she alleged was the result of the accident in April 2007, and which resulted in her surgery in June 2014. As a result, she will not be able to bring additional evidence of new injuries against our client, preventing her from seeking additional damages related to the foot injury or the surgery.
To read a full copy of the decision, click here.
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