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DEFENDANTS’ REPEATED FAILURES TO COMPLY WITH DISCOVERY DEMANDS WARRANTED STRIKING THE ANSWER AND COUNTERCLAIMS; SUPREME COURT HAD IMPOSED LESS SEVERE SANCTIONS, BUT THE APPELLATE COURT REVERSED AND IMPOSED THE ULTIMATE SANCTION–A RARE EXAMPLE OF CONDUCT DEEMED “WILLFUL AND CONTUMACIOUS” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants-landlords’ answer and counterclaims in this lease-related dispute with the plaintiff-tenant. should have been struck as a sanction for defendants’ repeated failures to comply with discovery demands:

Before imposing the “drastic” remedy of striking a pleading, there must be a clear showing that a party’s failure to comply with discovery is willful and contumacious … .. “Willful and contumacious conduct may be inferred from a party’s repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time” ,,, ,

Here, contrary to the Supreme Court’s assessment, the defendants’ behavior was willful and contumacious. The tenant demonstrated that the defendants “repeated[ly] fail[ed] to comply with court-ordered discovery” over “an extended period of time[,]” and the court itself found that the defendants offered “inadequate explanations for their failures to comply” … . Under the circumstances presented here, we find that the court should have granted that branch of the tenant’s motion which was pursuant to CPLR 3126 to strike the defendants’ answer and counterclaims in its entirety … . 255 Butler Assoc., LLC v 255 Butler, LLC, 2022 NY Slip Op 05067, Second Dept 8-31-22

Practice Point: This is a rare case where Supreme Court’s sanctions for defendants’ failures to comply with discovery demands were deemed inadequate. The appellate court stuck defendants’ answer and counterclaims finding defendants’ conduct “willful and contumacious.”

 

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THE DENIAL OF A MOTION TO SEAL A CRIMINAL CONVICTION IS CIVIL IN NATURE AND CAN BE APPEALED AS A MATTER OF RIGHT; HERE THE DEFENDANT’S MOTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (SECOND DEPT).
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