You are here: / / Defendant’s Failure to Comply with Discovery Orders Warranted Striking...

Defendant’s Failure to Comply with Discovery Orders Warranted Striking the Answer

The Second Department determined defendant’s answer was properly struck due to defendant’s failure to comply with the court’s orders concerning discovery:

“[A] trial court is given broad discretion to oversee the discovery process” … . When a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is within the court’s discretion to strike the “pleadings or parts thereof” (CPLR 3126[3]) as a sanction against such party … . However, public policy favors the resolution of cases on the merits … . Accordingly, “the drastic remedy’ of striking a pleading pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious” … . “Willful and contumacious conduct may be inferred from a party’s repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply . . . with court-ordered discovery over an extended period of time” … .

Here, the plaintiff moved to strike the answer insofar as asserted by the defendant Roger Powell (hereinafter the defendant) almost three years after commencing this action. At that time, the defendant still had not appeared for a deposition, despite numerous “so-ordered” extensions entered into between counsel for the parties, and in violation of a court order directing him to appear for such deposition. In opposition to the motion, defense counsel’s investigator stated that he had been unable to locate the defendant. Under these circumstances, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff’s motion which was to strike the answer insofar as asserted by the defendant and to direct an inquest against him … . Stone v Zinoukhova, 2014 NY Slip Op 05532, 2nd Dept 7-30-14

 

You might also like
THE JURY NOTES SHOULD HAVE BEEN READ VERBATIM TO COUNSEL, NOT PARAPHRASED BY THE JUDGE; THIS MODE OF PROCEEDINGS ERROR REQUIRES REVERSAL (SECOND DEPT).
Police Pursuit Not Justified by Defendant’s “Grabbing of his Waistband Area” or Subsequent Flight/Gun Suppressed
REMAINDER INTERESTS WHICH CAN ONLY BE DIVESTED BY A POWER OF APPOINTMENT ARE VESTED REMAINDER INTERESTS.
THE TIMELY FILING OF A SECOND MECHANIC’S LIEN TO CORRECT PROBLEMS WITH THE FIRST MECHANIC’S LIEN WHICH HAD BEEN CANCELLED BY THE COURT IS NOT PROHIBITED BY THE LIEN LAW (SECOND DEPT).
THE REFEREE’S REPORT, WHICH IS MERELY ADVISORY AND IS NOT BINDING ON THE COURT, SHOULD NOT HAVE BEEN ACCEPTED BY THE COURT BECAUSE IT WAS BASED UPON BUSINESS RECORDS THAT WERE NOT PROVIDED TO THE REFEREE (SECOND DEPT).
ALTHOUGH THE INFANT PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER SLIP AND FALL; MOTHER, FATHER AND THE DEFENDANTS PROVIDED CIRCUMSTANTIAL EVIDENCE THAT THE FALL WAS CAUSED BY AN IDENTIFIED DEFECT IN THE SIDEWALK, RAISING A QUESTION OF FACT (SECOND DEPT).
Emergency Doctrine Warranted Summary Judgment to Defendant Bus Company
ALTHOUGH PLAINTIFF INDICATED SHE DID NOT KNOW THE CAUSE OF HER FALL IN HER DEPOSITION, IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHE RAISED A QUESTION OF FACT ABOUT WHETHER THE FLOOR WAS WET FROM TRACKED IN SNOW AND DEFENDANT DID NOT PRESENT ANY EVIDENCE ON THE ISSUE OF NOTICE (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Law Firm Representing Wife in a Divorce Proceeding Entitled to Charging Lien... Bank Did Not Negotiate a Mortgage Modification in Good Faith as Required by...