Motion to Strike

[melsdutchworld]

What is the name of your state (only U.S. law)?

In Queens County, New York - Commercial Division

Defendant failed to answer interrogatories, appear at deposition or document request

Attempts have been made to contact Defendant to no avail

Can I file a motion to strike Defendants answer or do I need to notify the court in a letter to re-schedule

 

[davidmcbeth3]

What is the name of your state (only U.S. law)?

In Queens County, New York - Commercial Division

Defendant failed to answer interrogatories, appear at deposition or document request

Attempts have been made to contact Defendant to no avail

Can I file a motion to strike Defendants answer or do I need to notify the court in a letter to re-schedule

Either a motion for a default judgment or motion to compel would be appropriate (I would think with no responses a default may be in order). Check with your court rules . You cannot strike the answer if past the date that a striking is allowed.

 

[You Are Guilty]

Both Grays' and Kitzes' part rules on this follow the main Commercial Dept. rules, so while I suspect you will end up needing to file a motion (and keep in mind that the two judges do have different rules about filing and oral arguments of these motions), you still have two prerequisites:
- your Rule 130 "good faith attempt" to resolve the dispute (i.e. a letter or phone call to the other side); and
- the Rule 14 request to the court for a pre-motion conference.

Upon request, the pre-motion conference be via telephone rather than in person, if that is easier for you.

Good luck.

 

[melsdutchworld]

Thx yar !!!!!!!!!!!!!!

 

[melsdutchworld]

Pre-Motion Conference

So I called the court and asked if I could fax a letter over for Pre-Motion Conference. The clerk transferred me to the Judge and Judge Kitzes said to drop a letter in the mail for the Pre-Motion Conference.

I have not heard back from the court and this was over a week ago. I don't want to pester the judge.

Is there a normal time frame I should wait ? And what do I do if I hear no response ?

NOI due end of November.

 

[You Are Guilty]

You actually spoke to the judge or to the law secretary? Either way, while a week is not entirely unheard of, it's generally better to be proactive on these things. If nothing else, it makes sure that your case doesn't fall through the cracks. A polite phone call to the part clerk "to inquire as to whether the judge has made a decision on your pre-motion conference request" will not piss anyone off... unless you start making them 10 times a day.

In the future, request permission to fax the court the request. It saves 1-2 days of mail time.



PS. I wouldn't worry about the NOI deadline yet, but definitely raise it at your next conference. If your case is still under standards and goals (I think e-law has S&G listed if you don't already have it; or, you can also ask the part clerk), the judge may just extend it on the spot, saving you the trouble of filing a motion for the same thing in a month from now.

 

[melsdutchworld]

You actually spoke to the judge or to the law secretary? Either way, while a week is not entirely unheard of, it's generally better to be proactive on these things. If nothing else, it makes sure that your case doesn't fall through the cracks. A polite phone call to the part clerk "to inquire as to whether the judge has made a decision on your pre-motion conference request" will not piss anyone off... unless you start making them 10 times a day.

In the future, request permission to fax the court the request. It saves 1-2 days of mail time.



PS. I wouldn't worry about the NOI deadline yet, but definitely raise it at your next conference. If your case is still under standards and goals (I think e-law has S&G listed if you don't already have it; or, you can also ask the part clerk), the judge may just extend it on the spot, saving you the trouble of filing a motion for the same thing in a month from now.

I believe I spoke with the judge. I was told that the court does not accept fax. Send it via regular Mail.

I guess I will wait until the first week of November to see if there is a response to my pre-motion conference.

Because it doesnt show up on the court calendar as a pre-motion conference, and it was just a letter, not a motion - I am concerned it will get lost in the shuffle.

The court seems VERY busy.

Thanks for the response YAG.

 

[You Are Guilty]

To be honest, I wouldn't wait that long. If you are concerned about being a pest, give it another week, but you have to remember that there are a bunch of court holidays coming up (Election Day, Veterans Day, Thanksgiving, Xmas, New Years, etc.) plus whatever vacation days the judge has scheduled, which is really going to help cause a backlog. The longer you let it sit, the less time you will have to handle any issues that arise. Why shortchange yourself?


PS. I ran a quick check on e-courts. Kitzes is showing 825 active cases currently pending.

 

[melsdutchworld]

PS. I ran a quick check on e-courts. Kitzes is showing 825 active cases currently pending.

These courts are so jammed up with foreclosures and the mortgage banking mess in general, it ain't gonna change anytime soon

I will stop by the court next week with another letter referencing my first letter and the disappeareance of the Defendant and ZERO progress on any discovery per the Compliance Conference Order

Anything else you think I "should" or "must" include in a request for pre-motion conference ?

Thanks for the help

Mel

 

[You Are Guilty]

That should be fine. Short and sweet - the longer it is, the less likely anyone is going to read it all.

 

[melsdutchworld]

thx for the advice

 

[melsdutchworld]

Motion to Strike OR Motion for Default Judgment

I was informed by the clerk today that I may now file my motion. Will draft next week.

Just curious, when a defendant doesnt answer any discovery demands from plaintiff, is a motion to strike defendants answer OR a motion for default judgment the appropriate motion ? or can I file both ?

Thank

Mel

 

[You Are Guilty]

If the answer is stricken, you still have to file for a default judgment, its not automatic. So, the answer is "both".

You can also throw in a request for costs and sanctions under CPLR 3126. Probably wont get it, but it will certainly wake the defendant up!

 

[melsdutchworld]

If the answer is stricken, you still have to file for a default judgment, its not automatic. So, the answer is "both".

You can also throw in a request for costs and sanctions under CPLR 3126. Probably wont get it, but it will certainly wake the defendant up!

So I should wait for the Judge to grant my motion to strike via CPLR 3126 BEFORE filing a request for default judgment ? or can I file them both at the same time ?

As always, Thanks YAG

 

[You Are Guilty]

You can do it either way, but it saves a lot of time and energy to do it all in one motion. Just number all your requests and it can be all done together.