You are here: / / SANCTION FOR PLAINTIFF’S FAILURE TO COMPLY WITH A CONDITIONAL ORDER...
,

SANCTION FOR PLAINTIFF’S FAILURE TO COMPLY WITH A CONDITIONAL ORDER OF PRECLUSION SHOULD NOT HAVE GONE BEYOND THE PENALTY DESCRIBED IN THE ORDER (SECOND DEPT).

The Second Department, modifying Supreme Court, determined that the sanction imposed for plaintiff’s failure to turn over audio files and transcripts she was apparently relying upon to prove employment discrimination should not have gone beyond the terms of the conditional order of preclusion:

“A conditional order of preclusion requires a party to provide certain discovery by a date certain, or face the sanctions specified in the order” … . ” With this conditioning, the court relieves itself of the unrewarding inquiry into whether a party’s resistance was willful'” … . “When a plaintiff fails to timely comply with a conditional order of preclusion, the conditional order becomes absolute” … .

… [W]here, as here, a conditional order of preclusion specifies a penalty for the failure to comply, absent a change in circumstances, it is inappropriate for the court to impose a harsher penalty … . The Supreme Court improvidently exercised its discretion in barring the plaintiff from offering any evidence for any claim premised on the introduction of or which relies on the audio files the plaintiff failed to produce. Instead, the appropriate sanction was the one set forth in the conditional order of preclusion, which precluded the plaintiff from using the audio files and corresponding transcripts at trial unless she produced these items by a date certain, which she failed to do. Felice v Metropolitan Diagnostic Imaging Group, LLC, 2019 NY Slip Op 02067, Second Dept 3-20-19

 

You might also like
FAMILY COURT HELD A HEARING IN THE MODIFICATION OF CUSTODY PROCEEDING BUT DID NOT STATE IN ITS DECISION THE FACTS RELIED UPON TO DENY THE PETITION; THE APPELLATE DIVISION REVIEWED THE EVIDENCE, REVERSED FAMILY COURT, AND GRANTED MOTHER’S PETITION (SECOND DEPT).
False Arrest and False Imprisonment Causes of Action Properly Dismissed—City Demonstrated Police Had Probable Cause to Arrest Based Upon a Complaint by an Identified Citizen
ALTHOUGH THE BREACH OF CONTRACT CAUSES OF ACTION WERE PROPERLY DISMISSED BECAUSE THE CONTRACT WAS NOT AMBIGUOUS AND PAROL EVIDENCE THEREFORE WAS NOT ADMISSIBLE; THE FRAUDULENT INDUCEMENT CAUSE OF ACTION, FOR WHICH PAROL EVIDENCE IS ADMISSIBLE, SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).
ALTHOUGH THE SECOND ORDER TO SHOW CAUSE SEEKING LEAVE TO FILE A LATE NOTICE OF CLAIM WAS FILED TWO DAYS AFTER THE ONE-YEAR-NINETY-DAY LIMITATIONS PERIOD, THE STATUTE OF LIMITATIONS WAS TOLLED FOR THREE DAYS BETWEEN THE FILING AND THE DENIAL OF THE FIRST ORDER TO SHOW CAUSE; THE MEDICAL RECORDS PROVIDED THE MUNICIPALITY WITH NOTICE OF THE ESSENTAL FACTS OF THE CLAIM; THE MOTION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT).
DEFENDANT AND HIS SON WERE REPRESENTED BY THE SAME ATTORNEY; DEFENDANT ALLEGEDLY PLED GUILTY TO ATTEMPTED ASSAULT BECAUSE HE WAS TOLD HIS SON WOULD DO JAIL TIME IF DEFENDANT DID NOT ENTER THE PLEA; BECAUSE OF THE ATTORNEY’S CONFLICT OF INTEREST, DEFENDANT’S MOTION TO WITHDRAW HIS PLEA SHOULD HAVE BEEN GRANTED (SECOND DEPT).
THE PLANNING BOARD DID NOT HAVE THE AUTHORITY TO WAIVE OR IGNORE THE REQUIREMENTS OF THE VILLAGE ZONING CODE; THE SPECIAL USE PERMIT SHOULD NOT HAVE BEEN ISSUED AND THE SITE PLAN SHOULD NOT HAVE BEEN APPROVED (SECOND DEPT). ​
THE FORECLOSURE ACTION WAS TIME-BARRED; THE DISCONTINUANCE DID NOT DE-ACCELERATE THE DEBT (SECOND DEPT).
DOCTRINE OF EQUITABLE ESTOPPEL APPLIED TO DENY NYC TRANSIT AUTHORITY’S MOTION TO DISMISS FOR FAILURE TO SERVE A NOTICE OF CLAIM; THE NOTICE HAD BEEN TIMELY SERVED ON THE METROPOLITAN TRANSIT AUTHORITY AND A 50-h HEARING HAD BEEN HELD.

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

PLAINTIFF WAS STRUCK BY A FACE PLATE WHICH FELL OFF AN AIR CONDITIONER, ALTHOUGH... PUBLIC POLICY PRECLUDED RECOVERY OF CHILD SUPPORT OVERPAYMENTS (SECOND DEPT...