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THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT WHEN PLAINTIFF FAILED TO MEET A DEADLINE FOR A DEPOSITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the complaint when plaintiff failed to meet a deadline for a deposition:

“Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading . . . , where a party refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” … . “[T]he drastic remedy of striking a pleading . . . pursuant to CPLR 3126 should not be imposed absent a clear showing that the failure to comply with discovery demands or orders was willful and contumacious” … . Further, due process generally requires “notice and an opportunity to be heard before a court may impose such drastic remedies for discovery noncompliance” … .

Here, the plaintiff was not given adequate notice and opportunity to be heard prior to imposition of the drastic sanction of dismissal of the complaint, “including on facts relevant to whether the plaintiff’s noncompliance was willful and contumacious” … . The defendants did not move for sanctions pursuant to CPLR 3126 due to the plaintiff’s failure to appear for his deposition, nor did the Supreme Court make its own motion or include language in any prior order warning that noncompliance would result in sanctions … . Winchcombe v Ridgeline Constr. Corp., 2026 NY Slip Op 04794, Second Dept 7-29-26

Practice Point: The appellate courts do not like sua sponte dismissals of complaints without notice or an opportunity to be heard.

 

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