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STRIKING THE COMPLAINT WAS TOO SEVERE A SANCTION FOR PLAINTIFF’S FAILURE TO RESPOND TO DISCOVERY DEMANDS; $2500 PENALTY IMPOSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined sanctions were in order for plaintiff’s failure to respond to discovery demands, but striking the complaint was too severe. A monetary penalty was imposed:

… [T]he plaintiff’s failure to comply with discovery demands and orders directing discovery or respond to the letters from the defendants’ counsel concerning discovery, without providing a reasonable excuse, supports an inference of willful or contumacious conduct … . However, under the circumstances, the sanction imposed was too drastic a remedy and the defendants’ motion pursuant to CPLR 3126 to strike the complaint should have been granted only to the extent of directing the plaintiff’s counsel to personally pay the sum of $2,500 as a sanction to the defendants … . Mirabile v Kuwayama, 2024 NY Slip Op 04958, Second Dept 10-9-24

Practice Point: This case presents another instance of an appellate court’s determination the striking of a pleading as a sanction is too severe a penalty. Here plaintiff failed to respond to discovery demands and a $2500 penalty was deemed an appropriate sanction by the Second Department.

 

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