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PLAINTIFF’S MOTION TO COMPEL POST-JUDGMENT DISCOVERY TO DETERMINE DAMAGES SHOULD HAVE BEEN GRANTED, DEFENDANTS’ ANSWER HAD BEEN STRUCK FOR FAILURE TO COMPLY WITH A DISCOVERY ORDER AND A DEFAULT JUDGMENT HAD BEEN GRANTED.

The Fourth Department determined plaintiff’s motion seeking discovery to determine damages after defendants’ answer had been struck should have been granted. Plaintiff alleged defendants had breached “noncompete” provisions of an employment agreement. Defendant (Morrow) did not show up for a deposition and defendants did not provide discovery. Supreme Court granted plaintiff’s motion to strike the answer and enter judgment for plaintiff, but denied plaintiff’s motion for post-judgment discovery:

We agree with plaintiff that it is entitled to discovery in order to establish its damages … . A “defendant’s obligation to afford [a] plaintiff the opportunity to pursue discovery [is not] terminated when the answer [is] stricken,” inasmuch as a plaintiff should not be “handicapped in the proof of its damages by [a] defendant’s prior defiance of orders, notices, or subpoenas calling for his production of records or the taking of a deposition” … . Thus, a “plaintiff, if it chooses to do so, may press its right to discovery in advance of the inquest, whether for direct use as evidence in proving its damages or for the procurement of information that may lead to such evidence” … . Here, plaintiff is entitled to an order compelling Morrow’s compliance with the discovery demands insofar as those demands are “material and necessary” to establish plaintiff’s damages (CPLR 3101 [a]). We therefore reverse the order insofar as appealed from and grant that part of the motion seeking an order to compel discovery from Morrow with respect to damages only. ICM Controls Corp. v Morrow, 2017 NY Slip Op 05355, 4th Dept 6-30-17

 

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