Honghui Kuang v. MetLifeHonghui Kuang v. MetLife
Eric Dinnocenzo, New York, NY, for additional counterclaim defendants-appellants.
Honghui Kuang, Flushing, NY, plaintiff/counterclaim defendant-respondent pro se.
DECISION & ORDER
In an action to recover the proceeds of a life insurance policy, the additional counterclaim defendants appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Queens County (Velasquez, J.), entered July 13, 2016, which, inter alia, granted that branch of their motion which was pursuant to
ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof granting that branch of the motion of the additional counterclaim defendants which was pursuant to
In 2011, the decedent was diagnosed with amyotrophic lateral sclerosis. Before he died on April 4, 2013, the decedent sent an affidavit to Metropolitan in which he stated that he never authorized and did not recall making any modifications to his policy, that any documents purporting to modify the policy would have been presented to him in English, which he could not read and of which he had a limited understanding, and that, as a result, any changes were invalid. After the decedent‘s death, the plaintiff submitted a claim form to Metropolitan for the proceeds of the life insurance policy. The Yangs also submitted claim forms to Metropolitan for the proceeds of the policy, along with the affidavit of the decedent which had been sent to Metropolitan prior to the decedent‘s death, and a transcript of an examination under oath taken of the decedent, in which he denied authorizing changes to the policy and indicated his intent that the Yangs receive the entire proceeds of the policy. In light of the adverse claims, Metropolitan determined that it could not make any payment on the policy.
The plaintiff, proceeding pro se, commenced this action against Metropolitan to recover the proceeds of the policy. In its answer, Metropolitan interposed counterclaims against the plaintiff and the Yangs, who were named as additional counterclaim defendants. In answering Metropolitan‘s counterclaims against them, the Yangs asserted “cross-claims” against the plaintiff based upon their allegations that the plaintiff fraudulently changed the policy and was not entitled to any of the proceeds (hereinafter the cross claims). In their cross claims, the Yangs sought, inter alia, a judgment declaring that they are entitled to the full proceeds of the decedent‘s life insurance policy and that the plaintiff had no rights to the policy or proceeds, and directing payment of the full policy proceeds to them.
During the course of discovery, in an order entered November
Thereafter, in an order entered February 5, 2015, the Supreme Court granted that branch of a motion by the Yangs which was to compel the plaintiff to appear at a deposition. The plaintiff appeared for the deposition on March 5, 2015, but refused to answer many of the questions put to her, yelled at counsel, tore up and refused to return exhibits presented to her, and threatened the Yangs’ counsel before eventually walking out of the deposition. The court then issued an order entered July 7, 2015, directing the plaintiff to appear for a second deposition at which the parties were “to exhibit decorum and professional behavior towards each other.” The plaintiff appeared for the second deposition but would not answer any questions unless the Yangs’ counsel showed proof, including a retainer agreement, that he actually represented the Yangs. While counsel was attempting to reach the court by telephone for guidance, the plaintiff left without having answered any questions. Thereafter, the court issued an order entered October 19, 2015, directing the plaintiff to appear for a third deposition. Despite counsel serving the plaintiff with a copy of the October 19, 2015, order and notice of the deposition and his attempts to confirm same by letter, email, and telephone, the plaintiff failed to appear at the third deposition.
Subsequently, the Yangs moved, inter alia, pursuant to
“Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to
If a party “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed . . . the court may . . . strik[e] out pleadings . . . or dismiss[ ] the action . . . or render[ ] a judgment by default against the disobedient party” (
Here, the remedy of precluding the plaintiff from offering testimony at trial had already been granted in the November 6, 2014, order as a result of the plaintiff‘s failure to provide complete responses to certain requests set forth in the Yangs’ document demands within the time frame provided by the Supreme Court. “A conditional order of preclusion requires a
In this case, the November 6, 2014, order provided that the plaintiff was to supplement her responses within 30 days after service of a copy of that order with notice of entry. According to an affirmation of service, the Yangs served a copy of the November 6, 2014, order with notice of entry upon the plaintiff by regular mail on November 12, 2014. Consequently, the plaintiff had until December 17, 2014, to provide a supplemental response (see
Given the history of this case and the plaintiff‘s willful and contumacious conduct in trying to frustrate the discovery process, the Supreme Court improvidently exercised its discretion in not granting that branch of the Yangs’ motion which was to strike the plaintiff‘s complaint (see Lucas v Stam, 147 AD3d at 926; Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 210; Orgel v Stewart Tit. Ins. Co., 91 AD3d at 924). The plaintiff repeatedly failed to comply with the court‘s discovery orders by not providing supplemental responses to certain document demands, refusing to answer questions at the first and second court-ordered depositions, not acting with decorum at the second court-ordered deposition, and failing to appear for a third court-ordered deposition. The plaintiff‘s excuse that she wanted proof that counsel represented the Yangs before continuing to answer counsel‘s questions at the first deposition or answering any questions at the second deposition was not reasonable. Similarly, her excuse for failing to appear at the third court-ordered deposition, that she did not receive notice, was not reasonable given all of the means by which counsel
The Yangs’ remaining contentions either need not be reached in light of our determination, are without merit, or are not properly before this Court.
BALKIN, J.P., AUSTIN, SGROI and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court