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I am wondering if I can bring and Order to Show Cause for…

I am wondering if...

I am wondering if I can bring and Order to Show Cause for failure to comply with disclosure purusnat to CPLR 3124 after I served notice ofr discovery almost 5 months ago with a folow up reminder four months ago and I got no response. Can I ask that teir motion to dismiss my counterclaims or that their complaint on me be dismissed under 3126(3)? Thank you.

Lawyer's Assistant: What state are you in? It matters because laws vary by location.

NY

Lawyer's Assistant: Has anything been filed or reported?

I filed an answer and counterclaimed and they files as notice to dismiss my counterclaims. I didnt file my discovery notice but I have an affidavit of service

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

No. I dont think so. I am an attorney by training but have not practiced law in 35 years and never did litigation, and now I am pro se, and suppose to be brinignng in an OSC tomorrow morning.\ and an in th eprocess of preparing my affidavit is support. Thank you.

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Customer reply replied 10 months ago
I would like to know the exact language I can put in my OSC and in my affidavit in support and to substantiate it with any cases. Also, I had previously cross moved (in an opposition to a sealing motion) for a stay pending resolution of the underlying matrimonial action so that reasonable attorneys fees could be properly assessed, but the motion has still not been decided after four months. I am concerned that I am seeking the same relief twice in my OSC for a stay/extension pending resolution of the underlying case and/or an order to compel discovery or order to preclude either the complaint or their motion dismiss. Thank you.
Customer reply replied 10 months ago
I just saw that it could take a day to get a response, but unfortunately, I need an answer today because I am preparing my affidavit to the OSC and appearing in court tomorrow,. Thank you.
Answered in 3 hours by:
7/30/2017
Irwin Law
Irwin Law, Attorney
Category: Legal
Satisfied Customers: 7,563
Experience: Lawyer & Real Estate Broker, 30+ years, foreclosure, land contracts, inheritance, probate.
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I cannot tell exactly what you have filed thus far. If you file discovery motions such as interrogatories and request for production, which have not been complied with, the proper remedy is to seek an order from the court compelling the other party to comply with the request. A show cause order would rarely be issued. In such cases, so I might be miss reading your facts.

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Customer reply replied 10 months ago
CPLR 3124 provides for an order to show cause to compel discovery and 3126 provides for relief for failure to provide discovery one of which is to preclude the opposing party from supporting or opposing designated claims or defenses. If he is suing me, I answered and counterclaimed for malpractice, and then he filed a notice to dismiss without complying with my discovery requests, does this statute allow me to preclude him from opposing my counter claims or just the claims in the instant oder to show cause? And does it allow court to preclude his claims of his Notice to Dismiss or his law suit agaaint me- his complaint, or both? I am also seeking to stay his motion to dismiss until final adjudication of the underlying matrimonial case so thought an OSC would be best? Is there a CPLR section or case that I can cite to substantiate my right to bring a stay under these circumstances because damages have not been determined yet?

CPLR 3124

Failure to disclose; motion to compel disclosure

If a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response.

The answer to your question is "no", and the above rule is quite clear on its face, and only applies to compelling a party to respond to discovery. That's it. As for filing for a stay of a malpractice action pending the outcome of counterclaims based upon a matrimonial action, that would require a more complete investigation of the entire lawsuit. Suffice it to say that CPLR 3124 has nothing to do with that.

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Customer reply replied 10 months ago
Thank you. I will put the stay as a separate relief. Do you thin k I should cite some cases (i have a couple which show that a preclusion or dismissal is warranted even if a 3124 motion has not yet been ordered. Am I asking for a dismissal of his lawsuit against me or just from his Notice to Dismiss? And should I set forth in broad terms the malpractice that I am alleging(taken mostly from my counter claims in my answer) and address some things in his Notice to Dismiss at all (I am seeking to stay having to respond to that until the matrimonial action has been finally determined) or just save that for my opposition to his notice to dismiss when I have to do it.Thanks so much.

Do you thin k I should cite some cases (i have a couple which show that a preclusion or dismissal is warranted even if a 3124 motion has not yet been ordered?

Even though it won't usually hurt you, the chances of you finding cases that are on point, i.e. align with the facts and legal issues in your case are pretty remote.

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Customer reply replied 10 months ago
Thank you for your reply. Could you answer the above questions that you did not address? They are: Am I asking for a dismissal of his lawsuit against me or just from his Notice to Dismiss? And should I set forth in broad terms the malpractice that I am alleging(taken mostly from my counter claims in my answer) and address some things in his Notice to Dismiss at all (I am seeking to stay having to respond to that until the matrimonial action has been finally determined) or just save that for my opposition to his notice to dismiss when I have to do it.Thank you very much.

Am I asking for a dismissal of his lawsuit against me or just from his Notice to Dismiss?

I don't know why you are so persistent about seeking dismissal. You are unlikely to get it. Not at this stage of your case. You don't move to dismiss a notice of dismissal. You merely counter with the reasons why it should be denied. Your motion to dismiss must be directed against the complaint.

And should I set forth in broad terms the malpractice that I am alleging(taken mostly from my counter claims in my answer

I have no idea what you would do that, but you haven't told me anything about the case. Litigation procedure does not always fit into a nice tight "one size fits all​" pattern.

if you have been sued for collection of a professional's charges, and have filed a counterclaim for malpractice, courts often view that as an attempt to avoid payment. I am not saying that is what you are doing, but simply be aware of that factor.

Please don't forget to enter a rating by clicking on one of the five boxes at the top of this reply. We are not employees of Just Answer, and only receive credit for assisting you when the rating is positive.

Irwin Law
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Customer reply replied 10 months ago
Thank you very much. I am about to print it. Could I ask you to take a quick look see to see if you have any comments or notice anything glaringly wrong? I hope I attached it below.nThat would be super.Thank you soon much.
Robyn
Customer reply replied 10 months ago
I am so sorry that I cant pay an additional $59. That is why I am representing myself for lack of funds. I understand that asking you to review my affidavit before I finalize would be asking a lot. Thank you very much for your help.Robyn

Robyn: thank you for your accept. I tried to open the affidavit, but there something wrong with the document and Microsoft, or whoever rules the Internet is preventing it.

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Customer reply replied 10 months ago
I didn't click on the accept. I wrote that I didn't want to do it.

You only accepted these written answers, not the phone call offer. There is something in your attachment that is causing Word to block it from being opened.

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Customer reply replied 10 months ago
some- cant fit res14. Since the time of filing my Amended Answer, a Report with Recommendations has been issued on June 29, 2017 by the Referee in a hear and report in connection with the Matrimonial Case, and a schedule of dates has been set for the parties in the Matrimonial Case to present their motions to the judge to confirm or disaffirm the Referee’s Report.15. On July 5, 2017, Plaintiff filed its Motion to Dismiss my Counterclaims and an Affidavit in connection therewith together with exhibits.
Failure To Comply, Stay/Extension, and Relief Requested16. As of the date hereof, Plaintiff has still not responded and is thus in default of the Discovery Notices.
17. As of today, Plaintiff has still failed to return to me my files including files I gave to Plaintiff upon his retainment in September 2014 despite my repeated requests and his refusals, some of which are attached hereto (Exh 5).18. Plaintiff’s failure to return to me the files of trial binders that were prepared by my previous counsel and given by me to Plaintiff, as well as the numerous other boxes I gave to Plaintiff, and the files in Plaintiff’s possession in connection with my case and those documents pursuant to the Discovery Notices has prevented me from adequately defending Plaintiff’s lawsuit, from adequately prosecuting my counter claims against Plaintiff, and from properly pursuing my motions in connection with the Matrimonial Case.19. In order to properly continue with the action, I respectfully ***** ***** the files in possession of Plaintiff be returned to me at once so I can properly proceed with this case and find that Plaintiff is in default of Discovery Notices and/or respectfully ***** ***** this court preclude Plaintiff from continuing its suit, and/or dismiss Plaintiff’s complaint particularly if it does not comply with the Discovery Notices.20. It is my understanding that with regard to a failure to disclose, pursuant to CPLR 3126, the court may grant orders that are just including but not limited to, orders (1) resolving the issues which the information is relevant in accordance with the party obtaining the order; or (2) prohibiting the disobedient party from supporting or opposing designated claims or defenses; (3) striking pleadings or parts of it; (4) staying proceedings; and (5) dismissing the action.21. CPLR 3126(3) allows the court to strike a pleading upon a willful failure to disclose and the relevant and controlling authority states expressly that such a remedy is allowed even when no prior court order is violated. In Wolfson v. Nassau County Medical Center 141 A.D.2d 815 (Sup. Ct. NY, Second Dept. 1988), despite the fact that the plaintiff did not violate any prior court order, the Second Department affirmed the CPLR dismissal and denied Plaintiff’s request to reargue and vacate and found that the extensive nature of the delay in responding to interrogatories permits an inference that the delay was willful.22. CPLR 3126 permits a court to dismiss an action if the party “willfully fails to disclose information which the court finds ought to have been disclosed. ” In the instant case, the prolonged time of failure to comply or even respond to the Discovery Notices coupled with the willful refusal to return to me my files is more than an inference of willfulness.23. In light of Plaintiff’s failure to comply with the Discovery Notices and retaining my files, it makes it impossible to proceed with a defense or prosecution of my counter claims, and final adjudication of the Matrimonial Case will be essential in determining recoverable damages here.24. Plaintiff alleges in its Notice to Dismiss that no causation or damages exist but the reason for this is due to the fact that a decision has not yet been reached in the Matrimonial Case. I need this stay/extension because the facts in this case constitute a deviation from the standard of care, and so that the specifics of my damages and causation can be properly made. Final adjudication of the Matrimonial Case is essential in determining recoverable damages here.25. There are innumerable allegations of malpractice, breach of contract, and fraud, all made in good faith, some of which consist of failing to submit documents; failing to obtain documents; failing to allow me to sufficiently rebut testimony in the Matrimonial Case; failing to communicate with me and failing to convey information; failing to respond/address innumerable emails; sabotaging settlement; wrongly attributing more income to me and less to defendant; sabotaging MY credibility and prejudicing the court and alleging positions contrary to my interests and positions at trial.
26. Plain and simple, Plaintiff failed to represent me with even a modicum of the standard of care required by the Rules of Professional Conduct. In fact, Plaintiff stated to me that his failure to advocate for me is what I get for not paying his legal fees (Exh 6).
27
Customer reply replied 10 months ago
28. Plaintiff, by choosing to bring this suit against me prematurely is putting the cart before the horse, and is only trying to prevent me from pursuing my malpractice claims against it at a later date when a final decision has been made in the Matrimonial Case.29. The fact that my Amended Answer with Counterclaims has been duly noted by the Referee in the Matrimonial Case which she has a right to read even if the case were sealed, has already prejudiced me. If I continue to explain my allegations, I fear it will only serve to prejudice me further in the ultimate decision in the Matrimonial Case.30. Adding insult to injury, I also received a notice from Plaintiff’ that it has served a notice of deposition on Mr. Jason Advocate, the attorney representing defendant in the still ongoing Matrimonial Case. The date for Mr. Advocate’s deposition is August 31, 2017. Under the circumstances, this is highly prejudicial and inappropriate especially since the Matrimonial Case is still pending and my motion to reject the Referee’s Report is not scheduled to be filed until mid August.31. I sincerely ***** ***** the ultimate decision in the Matrimonial Case will reflect the true circumstances and the inequities and failures of my counsel and will look beneath the murky surface and do justice. But if that does not happen, then damages will be easily ascertainable.32. No prior application has been made for the relief requested except as set forth herein.
Customer reply replied 10 months ago
i wasnt sure about the bold faced areas and here is the relief I am requesting with all the and's and or's.
Maybe i should include relief that I need tome to get an attorney?This Affidavit is submitted in support of my motion for an Order(a)Requiring Plaintiff to comply with Defendant’s Notice for Discovery and Inspection, Notice of Interrogatories, and Notice of Deposition under CPLR 3124 which were duly served on Plaintiff’s attorneys in this action, and/or, alternatively, pursuant to CPLR Section 3126, precluding Plaintiff from opposing my claims and from pursuing his claims as a result of his failure to comply with discovery; and/or dismissing Plaintiff’s action; and /or, alternatively,(b) Staying this action and/or extending the time to respond to Plaintiff’s Motion to Dismiss Plaintiff’s Counterclaims which is due to Plaintiff on August 3, 2017 and returnable to the Court on August 22, 2017, to a date which is sixty (60) days after the filing of the judgment of divorce in the pending Matrimonial Case, Index No. 35025/2010; and/or(c)Extending the time to answer Plaintiff’s Motion to Dismiss pending resolution of this motion, and(d) Directing Plaintiff to return to Defendant all of Defendant’s files in his possession, and(e)For such further and other relief as the Court deems proper, including costs in this matter.Thanks so much.
Robyn

Looks very good.

Well written. Good luck!!

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Customer reply replied 10 months ago
Thank you very much. Sorry for the early email, but need to print out my papers first thing and head to court. Do you think I should put in an additional requested relief for time to find counsel and/or appointment of pro bono counsel? A couple of months ago, I had asked the Women's Bar Assoc and they directed me to the judge on the matrimonial case (different from the judge in the lawsuit against me) who then referred it to the Part Clerk who said that the circumstances of the case don't meet with the Women's Pro Bono Project. Can and should I ask for counsel fee appointment of some kind in my OSC, or do I run risk of their telling me that I have already requested that relief by asking for Women's Pro Bono Project?I think these should be my last questions: Since I may see my adversaries in court this morning, can I personally serve them the OSC and Affidavit? I assume I have to do an Affidavit of Service and then file the Affidavit of Service with the Clerk on e-file? Do you think the Ex Parte office will notarize my affidavit?Thank you so much for all of your help.

Do you think I should put in an additional requested relief for time to find counsel and/or appointment of pro bono counsel?

If you think you need it you should certainly ask for it.

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Customer reply replied 10 months ago
Thank you for all of your help. The judge did not grant me a stay or compel disclosure because he notice to dismiss stops disclosure. Judge got me to agree to give other side the Referee's Report in the matrimonial action but that report is very prejudicial to me especially since she recommended that husband pay attorney's fees in escrow for attorney to extent he prevails in his suit against me and if there is anything left over I can use to reimburse myself for previous legal fees I paid. So once he sees that and how poorly I did when he had recommended I accept a settlement for much more, I have NO chance..The attorney representing my attorney who is suing me argued that he has a retaining lien on mayflies and thus does not have to return them, but all I got was a notice for retaining lien which had not been signed by the judge, In fact, when he had made a motion to be relieved, he had asked for a retaining lien on my files, but judge had denied the entire motion so don't know how to find out if he has a retaining lien, I need my files for both cases, and attorney wouldn't even agree to give me my files in exchange for the referee's report. But I agreed to give him the report and he agreed not to depose my husband's attorney in the matrimonial case in which he asked for all orders and decisions so that he could get the referee's report (but I don't think he would be able to get it because the referee's report is not a decision or order- it is just a recommendation?) Thank you. Robyn
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