The First Department, over an extensive two-justice dissent, determined the city’s answer in this malicious prosecution/false arrest action was properly struck because of the city’s failure to comply with multiple discovery orders. The First Department also noted that a purely legal issue raised for the first time on appeal can be addressed provided the record is sufficient. (The issue raised for the first time on appeal was Supreme Court’s erroneous grant of a default judgment with respect to one of the defendants before the defendant’s time to answer the complaint had expired.) Essentially the initial discovery order was issued in May 2011 and the response was not filed until the return date of the plaintiff’s motion to strike in July 2014. The dissenting justices argued that some sanction short of striking the answer was warranted:
Pursuant to CPLR 3126, “[i]f any party . . . refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed, pursuant to this article, the court may make such orders with regard to the failure or refusal as are just.” This Court has long held that “the drastic remedy of striking a party’s pleading pursuant to CPLR 3126 for failure to comply with a discovery order . . . is appropriate only where the moving party conclusively demonstrates that the non-disclosure was willful, contumacious or due to bad faith” … “Willful and contumacious behavior can be inferred by a failure to comply with court orders, in the absence of adequate excuses” … . Although actions should be resolved on the merits whenever possible, the efficient disposition of cases “is not promoted by permitting a party . . . to impose an undue burden on judicial resources to the detriment of . . . other litigants. Nor is the efficient disposition of the business before the courts advanced by undermining the authority of the trial court to supervise the parties who appear before it” … . “[I]t generally is within the discretion of the motion court to determine the appropriate penalty to be imposed against an offending party” and “[i]t would not be appropriate . . . for this Court to substitute its discretion for that of the Justice sitting in the IAS Court”… . Watson v City of New York, 2018 NY Slip Op 00245, First Dept 1-16-18
CIVIL PROCEDURE (DISCOVERY, STRIKE ANSWER, APPEALS, STRIKING THE ANSWER WAS AN APPROPRIATE REMEDY FOR FAILURE TO COMPLY WITH MULTIPLE DISCOVERY ORDERS OVER A PERIOD OF THREE YEARS, PURELY LEGAL ISSUE RAISED FOR THE FIRST TIME ON APPEAL CAN BE CONSIDERED IF THE RECORD IS SUFFICIENT (FIRST DEPT))/DISCOVERY (STRIKE ANSWER, STRIKING THE ANSWER WAS AN APPROPRIATE REMEDY FOR FAILURE TO COMPLY WITH MULTIPLE DISCOVERY ORDERS OVER A PERIOD OF THREE YEARS (FIRST DEPT))/ANSWER, MOTION TO STRIKE STRIKING THE ANSWER WAS AN APPROPRIATE REMEDY FOR FAILURE TO COMPLY WITH MULTIPLE DISCOVERY ORDERS OVER A PERIOD OF THREE YEARS (FIRST DEPT))/APPEALS (PURELY LEGAL ISSUE RAISED FOR THE FIRST TIME ON APPEAL CAN BE CONSIDERED IF THE RECORD IS SUFFICIENT (FIRST DEPT))/CPLR3126 (STRIKING THE ANSWER WAS AN APPROPRIATE REMEDY FOR FAILURE TO COMPLY WITH MULTIPLE DISCOVERY ORDERS OVER A PERIOD OF THREE YEARS (FIRST DEPT))