In a September 6, 2018 decision issued in the litigation captioned Deidre Holmes Clark v. Allen & Overy LLP, the New York Court of Appeals inter alia denied the plaintiff’s motion seeking leave to appeal a March 8, 2018 Appellate Division, First Department decision affirming a Supreme Court order dismissing plaintiff’s complaint and awarding sanctions for frivolous conduct.
In this sexual harassment case, plaintiff – an attorney and former employee of defendant – argued that she was subjected to sexual harassment and discrimination while working in defendant’s Moscow office.
From the March 8, 2018 decision:
Contrary to plaintiff’s contention, she failed to comply with a court order that she undergo an independent medical examination (IME order). Plaintiff appealed from the IME order, and this Court affirmed (see Clark v Allen & Overy, LLP, 125 AD3d 497 [1st Dept 2015], lv dismissed 25 NY3d 1015 [2015], cert denied 577 US &mdash, 136 S Ct 553 [2015]). Nevertheless, plaintiff continued to refuse to schedule or sit for the IME. At a compliance conference held on September 29, 2015, the court ordered plaintiff to undergo an audiotaped IME on November 11, 2015, or face sanctions, including the dismissal of the complaint. On November 11, 2105, plaintiff appeared at the examiner’s office. However, she refused to take the microphone to be audiotaped, and she informed the examiner that she would go to the police and charge him with false imprisonment and assault if he proceeded with the examination without her consent. The examiner stopped the examination. Under the circumstances, the court properly dismissed the complaint for noncompliance pursuant to CPLR 3126 (see generally Muboyayi v Quintero, 136 AD3d 497 [1st Dept 2016], lv dismissed in part, denied in part 27 NY3d 1046 [2016]).
The court properly imposed financial sanctions on plaintiff for frivolous conduct pursuant to 22 NYCRR 130-1.1. Defendant submitted evidence that plaintiff violated the court’s sealing orders by posting about the case to her social media networks in an effort to “harass or maliciously injure [defendant]” (22 NYCRR 130-1.1 [c] [2]). Moreover, in her opposition to defendant’s motion to strike the note of issue, plaintiff falsely represented that she had not refused to sit for the IME and that discovery had been waived (see 22 NYCRR 130-1 [c] [3]).
In light of the Court of Appeals’ determination, that decision stands.