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PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY ORDERS WAS WILLFUL AND CONTUMACIOUS BUT DID NOT WARRANT SUPREME COURT’S STRIKING THE COMPLAINT; THE APPELLATE DIVISION IMPOSED EVIDENTIARY SANCTIONS AND ORDERED PLAINTIFF’S COUNSEL TO PAY DEFENDANT $3000 (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, agreed plaintiff’s failure to comply with discovery orders was willful and contumacious, but determined striking the complaint was too severe a sanction. The appellate division’s sanctions included ordering plaintiff’s counsel to pay defendant $3000:

… [T]he record demonstrates that the plaintiff violated court orders directing her to appear for a continued deposition by a certain date, to provide a full set of copies of photographs that she referenced during her first deposition or provide an affidavit as to the nonexistence of those photographs, and to execute authorizations for certain medical providers, a pattern that supports an inference of willful and contumacious behavior … . Furthermore, the plaintiff’s procedural objection to the defendant’s motion was without merit. However, under the circumstances, we find that the striking of the complaint was too drastic a remedy … . Accordingly, that branch of the defendant’s motion which was pursuant to CPLR 3126 to strike the complaint should have been granted only to the extent of (1) precluding the plaintiff from using at trial any photograph that was not produced in response to the defendant’s discovery demands, (2) directing the plaintiff to provide the defendant with medical authorizations for Jamaica Hospital, and (3) directing the plaintiff’s counsel to personally pay the sum of $3,000 as a sanction to the defendant … . Castillo v Charles, 2022 NY Slip Op 06103, Second Dept 11-2-22

Practice Point: Here the appellate division found plaintiff’s failure to comply with discovery orders willful and contumacious but did not agree with Supreme Court’s striking of the complaint. The appellate court imposed evidentiary sanctions and ordered plaintiff’s counsel to pay defendant $3000.

 

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