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DEFENDANTS DID NOT SUBMIT AN AFFIRMATION DEMONSTRATING A GOOD FAITH EFFORT TO RESOLVE THE DISCOVERY ISSUES; DEFENDANTS, IN THEIR MOTION TO PRECLUDE THE PLAINTIFF FROM PRESENTING EVIDENCE AS A DISCOVERY SANCTION, DID NOT DEMONSTRATE PLAINTIFF’S FAILURE TO COMPLY WITH COURT-ORDERED DISCOVERY WAS “WILLFUL AND CONTUMACIOUS;” DEFENDANTS’ MOTION TO PRECLUDE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants’ motion to preclude plaintiff from offering evidence or responding to a dispositive motion as a discovery sanction should not have been granted for two reasons: (1) the defendants did not submit an affirmation demonstrating a good faith effort to resolve the discovery issues (22 MYCRR 202.t(a)); and (2), the defendants failed to demonstrate plaintiff’s failure to comply with court-ordered discovery was willful and contumacious:

‘Pursuant to CPLR 3126, a court may impose discovery sanctions, including the . . . preclusion of evidence, where a party “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed”‘” … . “Before a court invokes the drastic remedy of precluding a party from offering evidence at trial, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious” … . Here, the defendants failed to make a clear showing of a willful and contumacious failure by the plaintiff to comply with discovery demands. The defendants’ motion papers failed to identify precisely what discovery was demanded and never provided. In addition, the August 2022 order only referred vaguely to, among other things, “authorizations,” and the March 2024 order directed the plaintiff to submit “complete responses” to the defendants’ combined discovery demands without any indication of the nature of the alleged outstanding discovery. Under the circumstances, the defendants failed to make the requisite showing justifying the Supreme Court’s imposition of the subject discovery sanctions … . Noh Soon Park v Food Bazaar Supermarket, 2026 NY Slip Op 05108, Second Dept 8-26-26

Practice Point: Consult this decision for insight into what a defendant must demonstrate to win a motion to preclude the plaintiff from presenting evidence as a sanction for failure to comply with court-ordered discovery.

 

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HERE SUPREME COURT PROPERLY FOUND THERE WAS “GOOD CAUSE SHOWN” FOR... SERVICE OF A VALID RPAPL 1304 NOTICE IS A CONDITION PRECEDENT TO A FORECLOSURE...