August 2, 2019
Justice Mendez granted a motion to vacate a prior default judgment in favor of Kohler and Domco, dismissing plaintiffs’ claim for punitive damages in the Carlstrand matter. On June 27, 2019, plaintiffs’ counsel notified all defendants of their intention to seek punitive damages (trial was scheduled to begin July 30, 2019). Kohler, Domco, and later Pfizer (since resolved, rendering their motion moot), moved to dismiss the claim for punitive damages, claiming plaintiffs’ pursuit of punitive damages violated the CMO as plaintiffs failed to notify parties that they intended to seek punitive damages prior to June 27. Because plaintiffs failed to appear to argue the motion, Kohler and Domco’s motion was granted on default.
In reversing the default judgment, Justice Mendez dismissed the merits of the timeliness argument. Defendants were on notice of plaintiffs’ intention to pursue punitive damages when the complaint was initially filed—they waited until a month before trial to formally make this motion. CMO § VII(C) requires the parties to meet and confer regarding the possibility of a stipulation to dismiss the punitive damages claim, which neither Kohler nor Domco attempted. Finally, while CMO § IX(M) requires plaintiff to answer defendants’ interrogatories and document requests concerning punitive damages, that was not the premise of Kohler/Domco’s motion.
In short, Justice Mendez is sending a clear message—“defendant[s] should have made a timely motion to compel or preclude before the end of discovery.” Justice Mendez further explained that all NYCAL cases have a very clear, delineated discovery schedule. Making a motion to dismiss a cause of action, when the case has been pending for two years, is simply too late. As such, to the extent punitive damages is claimed (which is in nearly every, if not all, asbestos actions), early motion practice is not only suggested, but required if it is to have any efficacy.