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PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY DEMANDS AND A CONDITIONAL ORDER WARRANTED DISMISSAL OF THE COMPLAINT PURSUANT TO CPLR 3126 (SECOND DEPT).

The Second Department determined plaintiff’s family to comply with discovery demands and a conditional order warranted dismissal of the complaint pursuant to CPLR 3126:

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If a party refuses to obey an order for disclosure or willfully fails to disclose information, the court may dismiss the action (see CPLR 3126[3]). “While actions should be resolved on the merits when possible, a court may strike [a pleading] upon a clear showing that [a party’s] failure to comply with a disclosure order was the result of willful and contumacious conduct” … .

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Here, the willful and contumacious character of the plaintiff’s actions can be inferred from its repeated failure to respond adequately to the defendant’s notice for discovery and inspection and interrogatories, and the absence of any adequate explanation for its failure to timely comply with those requests, or the deadline set forth in the preliminary conference order… .

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When the plaintiff failed to provide full and complete responses to the defendant’s discovery demands within the specified time, the conditional order became absolute … . To be relieved of the adverse impact of the conditional order directing dismissal of the complaint, the plaintiff was required to demonstrate a reasonable excuse for its failure to provide full and complete responses to the defendant’s discovery demands and that its cause of action was potentially meritorious … . The plaintiff’s submission of an unsworn and unsigned affidavit from its owner did not demonstrate either. Corex-SPA v Janel Group of N.Y., Inc., 2017 NY Slip Op 08502, Second Dept 12-6-17

 

CIVIL PROCEDURE (DISCOVERY, PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY DEMANDS AND A CONDITIONAL ORDER WARRANTED DISMISSAL OF THE COMPLAINT PURSUANT TO CPLR 3126 (SECOND DEPT))/DISCOVERY (CIVIL PROCEDURE, PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY DEMANDS AND A CONDITIONAL ORDER WARRANTED DISMISSAL OF THE COMPLAINT PURSUANT TO CPLR 3126 (SECOND DEPT))/CPLR 3126 (DISCOVERY,  PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY DEMANDS AND A CONDITIONAL ORDER WARRANTED DISMISSAL OF THE COMPLAINT PURSUANT TO CPLR 3126 (SECOND DEPT))

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