ALTHOUGH SUPREME COURT PROPERLY PRECLUDED DEFENDANT FROM PRESENTING EVIDENCE AT TRIAL BECAUSE OF DISCOVERY ORDER VIOLATIONS, SUPREME COURT ABUSED ITS DISCRETION BY STRIKING DEFENDANT’S ANSWER (SECOND DEPT).

The Second Department determined defendant (Koonin), the owner/operator of a car involved in an accident with plaintiff, had violated discovery orders and was guilty of willful or contumacious conduct warranting sanction. Supreme Court both struck Konnin’s answer and precluded Koonin from submitting any evidence at trial. The Second Department held that striking the answer was an abuse of discretion:

“The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court’s discretion” … . “The general rule is that the court will impose a sanction commensurate with the particular disobedience it is designed to punish and go no further than that” … . This Court is vested with corresponding power to substitute its own discretion for that of the motion court, even in the absence of abuse… .

In light of Koonin’s failure to comply with multiple court orders and so-ordered stipulations directing him to appear for the EBT, the Supreme Court properly concluded that Koonin engaged in willful and contumacious conduct… . However, under the circumstances, it was an improvident exercise of discretion to grant those branches of the motion and cross motion which were to strike Koonin’s answer in light of the fact that the court also granted those branches of the motion and cross motion which were to preclude Koonin from offering any evidence at the time of trial … . Chowdhury v Hudson Val. Limousine Serv., LLC, 2018 NY Slip Op 04526, Second Dept 6-20-18

​CIVIL PROCEDURE (DISCOVERY VIOLATIONS, ALTHOUGH SUPREME COURT PROPERLY PRECLUDED DEFENDANT FROM PRESENTING EVIDENCE AT TRIAL BECAUSE OF DISCOVERY ORDER VIOLATIONS, SUPREME COURT ABUSED ITS DISCRETION BY STRIKING DEFENDANT’S ANSWER (SECOND DEPT))/CPLR 3126 (DISCOVERY VIOLATIONS, ALTHOUGH SUPREME COURT PROPERLY PRECLUDED DEFENDANT FROM PRESENTING EVIDENCE AT TRIAL BECAUSE OF DISCOVERY ORDER VIOLATIONS, SUPREME COURT ABUSED ITS DISCRETION BY STRIKING DEFENDANT’S ANSWER (SECOND DEPT))/DISCOVERY (DISCOVERY VIOLATIONS, ALTHOUGH SUPREME COURT PROPERLY PRECLUDED DEFENDANT FROM PRESENTING EVIDENCE AT TRIAL BECAUSE OF DISCOVERY ORDER VIOLATIONS, SUPREME COURT ABUSED ITS DISCRETION BY STRIKING DEFENDANT’S ANSWER (SECOND DEPT))/WILLFUL OR CONTUMACIOUS CONDUCT (DISCOVERY VIOLATIONS, ALTHOUGH SUPREME COURT PROPERLY PRECLUDED DEFENDANT FROM PRESENTING EVIDENCE AT TRIAL BECAUSE OF DISCOVERY ORDER VIOLATIONS, SUPREME COURT ABUSED ITS DISCRETION BY STRIKING DEFENDANT’S ANSWER (SECOND DEPT))/PRECLUDE, MOTION TO  (DISCOVERY VIOLATIONS, ALTHOUGH SUPREME COURT PROPERLY PRECLUDED DEFENDANT FROM PRESENTING EVIDENCE AT TRIAL BECAUSE OF DISCOVERY ORDER VIOLATIONS, SUPREME COURT ABUSED ITS DISCRETION BY STRIKING DEFENDANT’S ANSWER (SECOND DEPT))/ANSWER, MOTION TO STRIKE  (DISCOVERY VIOLATIONS, ALTHOUGH SUPREME COURT PROPERLY PRECLUDED DEFENDANT FROM PRESENTING EVIDENCE AT TRIAL BECAUSE OF DISCOVERY ORDER VIOLATIONS, SUPREME COURT ABUSED ITS DISCRETION BY STRIKING DEFENDANT’S ANSWER (SECOND DEPT))