You are here: / / ALTHOUGH SUPREME COURT PROPERLY PRECLUDED DEFENDANT FROM PRESENTING EVIDENCE...

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))

You might also like
New York’s Transactional Approach to Res Judicata Applies to Issues Which Could Have Been Raised in a Prior Proceeding on the Merits, Even Where Prior Proceeding Was Wrongly Decided
THE REFEREE DID NOT HAVE THE AUTHORITY TO PRECLUDE DEFENDANT FROM PRESENTING EVIDENCE AS AN APPARENT SANCTION FOR DEFENDANT’S FAILURE TO APPEAR; THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).
SUPREME COURT SHOULD NOT HAVE DISMISSED THE FORECLOSURE ACTION, AN ADMINISTRATIVE ORDER REQUIRING A FORECLOSURE AFFIRMATION AND A CERTIFICATE OF MERIT SHOULD NOT HAVE BEEN APPLIED RETROACTIVELY, A STIPULATION AWARDING SUMMARY JUDGMENT TO THE BANK SHOULD NOT HAVE BEEN IGNORED, THE IMPROPER APPLICATION OF THE ADMINISTRATIVE ORDER RAISED A MATTER OF LAW THAT COULD BE CONSIDERED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).
HERE IN THIS MED MAL ACTION, THE COVID-RELATED IMMUNITY CODIFIED IN THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) WARRANTED SUMMARY JUDGMENT DISMISSING THE CAUSES OF ACTION STEMMING FROM THE TREATMENT OF PLAINTIFF BY DEFENDANT PHYSICIAN IN APRIL 2020, BUT NOT THE CAUSE OF ACTION STEMMING FROM THE TREATMENT OF PLAINTIFF BY DEFENDANT PHYSICIAN IN MARCH 2020, BEFORE HIS OFFICE WAS CLOSED PURSUANT TO THE COVID EMERGENCY DECLARATION (SECOND DEPT).
NOTICE OF CLAIM WHICH WAS MISDIRECTED BECAUSE OF A MINOR MISNOMER ON THE MAILED ENVELOPE DEEMED TIMELY SERVED.
THE CITY ISSUED TREE PIT PERMITS FOR THE SIDEWALK ABOVE A SUBWAY STATION; PLAINTIFF WAS INJURED IN THE SUBWAY STATION BELOW THE SIDEWALK WHEN A PIECE OF CONCRETE FELL; THE CITY DID NOT CLAIM IT DID NOT HAVE WRITTEN NOTICE OF THE SIDEWALK DEFECT; THERE WAS A QUESTION OF FACT WHETHER THE CITY CREATED THE DANGEROUS CONDITION (TREE PIT PERMITS) (SECOND DEPT).
Late Notice of Claim Should Not Have Been Allowed
THE OPINION CHANGING THE CRITERIA FOR THE DEPRAVED-INDIFFERENCE MENS REA CAME DOWN BEFORE DEFENDANT’S CONVICTION BECAME FINAL; DESPITE THE AFFIRMANCE OF DEFENDANT’S MURDER CONVICTION ON APPEAL, THE DENIAL OF A MOTION TO REARGUE THE APPEAL, THE DENIAL OF THE MOTION FOR LEAVE TO APPEAL TO THE COURT OF APPEALS, AND THE DENIAL OF DEFENDANT’S PETITION FOR A WRIT OF HABEAS CORPUS IN FEDERAL COURT, SUPREME COURT SHOULD HAVE GRANTED DEFENDANT’S MOTION TO VACATE HIS CONVICTION (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING... BANK WAS REQUIRED TO GIVE DEFENDANT NOTICE OF ITS MOTIONS FOR AN ORDER OF REFERENCE...