New York Appellate Digest
  • Home
  • About
  • Just Released
  • Update Service
  • Streamlined Research
  • CLE Courses
  • Contact
  • Menu Menu
You are here: Home1 / Civil Procedure2 / DISCOVERY VIOLATIONS WARRANTED DISMISSAL OF THE COMPLAINT (SECOND DEPT...
Civil Procedure

DISCOVERY VIOLATIONS WARRANTED DISMISSAL OF THE COMPLAINT (SECOND DEPT).

The Second Department determined plaintiff’s complaint was properly dismissed because of plaintiff’s discovery violations:

“The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is within the broad discretion of the motion court” … . ” The drastic remedy of striking a pleading is warranted where the party’s failure to comply with court-ordered discovery is willful and contumacious'” … . “The willful or contumacious character of a party’s conduct can be inferred from the party’s repeated failure to respond to demands or to comply with discovery orders” …  and the absence of a reasonable excuse for these failures … . ” Absent an improvident exercise of discretion, the determination to impose sanctions for conduct that frustrates the purpose of the CPLR should not be disturbed'” … .

Here, the willful and contumacious character of the plaintiff’s conduct can be inferred, initially, from his inadequate verified bill of particulars and response to the notice for discovery and inspection, both served nearly one year after service of the demand for a verified bill of particulars and the notice for discovery and inspection. Thereafter, the plaintiff failed to comply with the Supreme Court’s directive at the January 8, 2016, conference to produce any outstanding discovery within 30 days, and this failure to comply was followed by further noncompliance after the February 24, 2016, conference. Moreover, the plaintiff failed to respond in any manner to the other discovery demands. Westervelt v Westervelt, 2018 NY Slip Op 05519, Second Dept 7-25-18

CIVIL PROCEDURE (DISCOVERY VIOLATIONS WARRANTED DISMISSAL OF THE COMPLAINT (SECOND DEPT))/DISCOVERY  (DISCOVERY VIOLATIONS WARRANTED DISMISSAL OF THE COMPLAINT (SECOND DEPT))

July 25, 2018
Tags: Second Department
Share this entry
  • Share on WhatsApp
https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 Bruce Freeman https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png Bruce Freeman2018-07-25 11:27:162020-01-26 17:47:54DISCOVERY VIOLATIONS WARRANTED DISMISSAL OF THE COMPLAINT (SECOND DEPT).
You might also like
VIDEO SHOWED ELEVATOR DOORS OPERATED PROPERLY, PLAINTIFF ALLEGED INJURY FROM DOORS CLOSING ON HER, SUMMARY JUDGMENT GRANTED TO HOTEL AND ELEVATOR MAINTENANCE COMPANY (SECOND DEPT). ​
DEFENDANT BAR NOT LIABLE FOR INJURIES AND DEATH OF PLAINTIFF’S DECEDENT RESULTING FROM AN ALTERCATION ON A PUBLIC ROAD IN FRONT OF THE BAR, BAR EXERCISED NO CONTROL OVER THE AREA WHERE THE ALTERCATION OCCURRED (SECOND DEPT).
Application to File Late Notice of Claim Against School District Properly Denied—School District Did Not Have Timely Actual Notice and Plaintiff Had No Reasonable Excuse
THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT).
EVIDENCE THAT DEFENDANT USED HIS FAMILIAL RELATIONSHIP WITH THE WITNESS (DEFENDANT’S COUSIN) TO INDUCE THE WITNESS’S REFUSAL TO TESTIFY WAS SUFFICIENT TO WARRANT INTRODUCTION OF THE WITNESS’S PRIOR STATEMENTS AT TRIAL (SECOND DEPT).
THE BANK IN THIS FORECLOSURE ACTION DID NOT SUBMIT SUFFICIENT PROOF OF DEFENDANT’S DEFAULT AND COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).
Police Officer Not Injured by “Recognized Hazard”—No Recovery Under Municipal Law/Labor Law—Officer Injured by Suspect After Mace Canister Failed
COURT SHOULD NOT HAVE REJECTED NEGOTIATED STIPULATION SETTLING THE ACTION WITH ONE PLAINTIFF AND PROCEEDING TO TRIAL WITH THE OTHER PLAINTIFF.

Categories

  • Abuse of Process
  • Account Stated
  • Accountant Malpractice
  • Administrative Law
  • Agency
  • Animal Law
  • Appeals
  • Arbitration
  • Architectural Malpractice
  • Associations
  • Attorneys
  • Banking Law
  • Bankruptcy
  • Battery
  • Chiropractor Malpractice
  • Civil Commitment
  • Civil Conspiracy
  • Civil Forfeiture
  • Civil Procedure
  • Civil Rights Law
  • Condominium Corporations
  • Condominiums
  • Constitutional Law
  • Consumer Law
  • Contempt
  • Contract Law
  • Conversion
  • Cooperatives
  • Copyright
  • Corporation Law
  • Correction Law
  • County Law
  • Court of Claims
  • Criminal Law
  • Debtor-Creditor
  • Defamation
  • Dental Malpractice
  • Disciplinary Hearings (Inmates)
  • Education-School Law
  • Election Law
  • Eminent Domain
  • Employment Law
  • Engineering Malpractice
  • Environmental Law
  • Equitable Recoupment
  • Evidence
  • Fair Credit Reporting Act
  • Fair Housing Act
  • Fair Housing Amendments Act
  • False Arrest
  • False Claims Act
  • False Imprisonment
  • Family Law
  • Federal Employers' Liability Act (FELA)
  • Fiduciary Duty
  • Foreclosure
  • Fraud
  • Freedom of Information Law (FOIL)
  • Human Rights Law
  • Immigration Law
  • Immunity
  • Indian Law
  • Insurance Law
  • Intellectual Property
  • Intentional Infliction of Emotional Distress
  • Involuntary Medical Treatment and Feeding (Inmates)
  • Judges
  • Labor Law
  • Labor Law-Construction Law
  • Land Use
  • Landlord-Tenant
  • Legal Malpractice
  • Lien Law
  • Limited Liability Company Law
  • Longshoreman's and Harbor Worker's Compensation Act
  • Malicious Prosecution
  • Maritime Law
  • Medicaid
  • Medical Malpractice
  • Mental Hygiene Law
  • Military Law
  • Money Had and Received
  • Municipal Law
  • Navigation Law
  • Negligence
  • Negligent Infliction of Emotional Distress
  • Negligent Misrepresentation
  • Notarial Misconduct
  • Nuisance
  • Partnership Law
  • Personal Property
  • Pharmacist Malpractice
  • Physician Patient Confidentiality
  • Pistol Permits
  • Prima Facie Tort
  • Private Nuisance
  • Privilege
  • Products Liability
  • Professional Malpractice
  • Public Authorities Law
  • Public Corporations
  • Public Health Law
  • Public Nuisance
  • Real Estate
  • Real Property Actions and Proceedings Law (RPAPL)
  • Real Property Law
  • Real Property Tax Law
  • Religion
  • Replevin
  • Retirement and Social Security Law
  • Securities
  • Sepulcher
  • Sex Offender Registration Act (SORA)
  • Social Services Law
  • Statutes
  • Tax Law
  • Tenant Harassment
  • Tortious Interference with Contract
  • Tortious Interference with Employment
  • Tortious Interference with Prospective Business Relations
  • Tortious Interference With Prospective Economic Advantage
  • Town Law
  • Toxic Torts
  • Trade Secrets
  • Trademarks
  • Trespass
  • Trusts and Estates
  • Uncategorized
  • Unemployment Insurance
  • Unfair Competition
  • Uniform Commercial Code
  • Usury
  • Utilities
  • Vehicle and Traffic Law
  • Victims of Gender-Motivated Violence Protection Law (VGM)
  • Village Law
  • Water Law
  • Workers' Compensation
  • Zoning

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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

SUPREME COURT PROPERLY REFUSED TO DISMISS A COMPLAINT CONCERNING CONTROL OF... DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE DOG’S VICIOUS...
Scroll to top