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AN ORDER REQUIRING COMPLIANCE WITH DISCOVERY DEMANDS WHICH WAS NOT SERVED ON THE DEFENDANT BY THE PLAINTIFF IS NOT ENFORCEABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined an order that was not served on the defendant by the plaintiff, here an order striking the answer if discovery demands were not complied with by a specified date, was not enforceable:

… [T]he plaintiff, as the successful moving party given that the Supreme Court conditionally granted that branch of the prior motion which was to strike the defendant’s answer, was required to serve the May 2016 order on the defendant for that order to be enforceable against the defendant with respect to its answer being stricken in the event that it failed to provide discovery responses by June 17, 2016 … . The plaintiff’s contention that since the May 2016 order did not specify that the plaintiff had to serve a copy of that order with notice of entry upon the defendant, the plaintiff did not have to do so before that order was enforceable against the defendant, is without merit (see CPLR 2220). Since the defendant did not have notice of the May 2016 order, its failure to provide discovery responses by June 17, 2016, was not willful. Wolf Props. Assoc., L.P. v Castle Restoration, LLC, 2019 NY Slip Op 05808, Second Dept 7-24-19

 

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