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DISMISSAL OF COMPLAINT TOO SEVERE A SANCTION FOR FAILING TO COMPLY WITH DISCOVERY SCHEDULING ORDER (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the dismissal of the complaint was too severe a sanction for plaintiff’s failure to comply with the court’s scheduling order:

Defendants merely alleged that plaintiff’s failure to comply with the discovery deadlines set forth in the scheduling order was due to the representations of plaintiff’s attorney that he was engaged in settlement negotiations with a claims adjuster. Plaintiff’s attorney apparently believed that settlement of the case was imminent and, thus, that depositions would not be necessary. There is also nothing in the record to indicate that plaintiff ignored any warnings from the court that continued noncompliance with discovery orders could lead to the court striking the complaint … , or that defendants were prejudiced by the delay in conducting discovery … .

Although plaintiff’s dilatory conduct may have reasonably prompted defendants to seek the court’s guidance, the drastic sanction of dismissing the complaint with prejudice provided more relief than was necessary to protect defendants’ interests … . In short, plaintiff’s conduct was not the type of “deliberately evasive, misleading and uncooperative course of conduct or a determined strategy of delay” that would justify the penalty of dismissal of the complaint … . Windnagle v Tarnacki, 2020 NY Slip Op 03355, Fourth Dept 6-12-20

 

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