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Monetary Sanction Against Plaintiff’s Attorney and Striking of Complaint Deemed Appropriate Where Discovery Delays Unexplained

The Fourth Department determined a $2090.00 sanction against plaintiff’s attorney and the striking of the complaint in a slip and fall case were appropriate based upon plaintiff’s discovery delays:

…[W]e conclude that, under the circumstances, Supreme Court did not abuse its discretion in imposing sanctions on plaintiff’s attorney for what the court characterized as “excessive and inexcusable delay” in providing discovery responses … . …[W]e reject plaintiff’s contention that the court applied an incorrect legal standard in striking the complaint and dismissing [the action]. “[T]he type and degree of sanction [for a discovery violation] will be left to the discretionary authority of the trial court which will remain undisturbed absent an abuse thereof” … . “While the nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter of [the court’s] discretion . . . , striking a pleading is appropriate where there is a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith” … . Here, the court properly determined that defendant met its initial burden of establishing willful, contumacious or bad faith conduct by plaintiff, thereby shifting the burden to plaintiff to offer a reasonable excuse … . Allen v Wal-mart Stores Inc, 2014 NY Slip Op 06695, 4th Dept 10-3-14

 

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DEFENDANT EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE REAR-END COLLISION OCCURRED; DEFENDANT WAS DRIVING HIS OWN CAR TO WORK.
PLAINTIFF’S EVIDENCE WAS SUFFICIENT TO RAISE TRIABLE QUESTIONS OF FACT ABOUT WHETHER THE DEFECT IN THE WALKWAY WAS TRIVIAL AND WHETHER THE DEFECT CAUSED THE SLIP AND FALL.
AN OFFICER’S OBSERVATION OF DEFENDANT’S CAR FOLLOWING ANOTHER CAR TOO CLOSELY (A TRAFFIC INFRACTION) PROVIDED PROBABLE CAUSE FOR A TRAFFIC STOP, EVEN IF THERE WERE OTHER MOTIVATIONS FOR THE STOP (FOURTH DEPT).
THE POLICE DID NOT HAVE REASONABLE SUSPICION TO JUSTIFY THE TRAFFIC STOP AND DID NOT HAVE PROBABLE CAUSE TO ARREST AT THE TIME DEFENDANT GOT OUT OF THE CAR; THE STATEMENTS MADE BY DEFENDANT AND THE COCAINE SEIZED FROM HIS PERSON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).
IN RESPONSE TO A BATSON INQUIRY, THE PROSECUTOR’S REASON FOR STRIKING THE PROSPECTIVE JUROR IN FACT RELATED TO ANOTHER PROSPECTIVE JUROR FOR WHOM DEFENDANT HAD EXERCISED A PEREMPTORY CHALLENGE; NEW TRIAL ORDERED (FOURTH DEPT).
UNNECESSARILY ALLOWING THE JURY TO KNOW DEFENDANT WAS A REGISTERED SEX OFFENDER WAS NOT JUSTIFIED BY ANY REASONABLE DEFENSE STRATEGY, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, CONVICTION REVERSED.
SUPREME COURT PROPERLY FOUND THAT THE OFFICER DID NOT HAVE SUFFICIENT GROUNDS TO STOP DEFENDANT ON THE STREET, DETAIN HIM, SEARCH HIS BAG AND TRANSPORT HIM TO THE BURGLARY SCENE FOR A SHOWUP IDENTIFICATION (FOURTH DEPT).
Error Associated With Defendant’s Being Handcuffed During the Suppression Hearing Harmless/Error Associated with Defendant’s Wearing a Stun Belt During Trial Waived

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