You are here: / / SANCTION FOR PLAINTIFF’S FAILURE TO COMPLY WITH A CONDITIONAL ORDER...
,

SANCTION FOR PLAINTIFF’S FAILURE TO COMPLY WITH A CONDITIONAL ORDER OF PRECLUSION SHOULD NOT HAVE GONE BEYOND THE PENALTY DESCRIBED IN THE ORDER (SECOND DEPT).

The Second Department, modifying Supreme Court, determined that the sanction imposed for plaintiff’s failure to turn over audio files and transcripts she was apparently relying upon to prove employment discrimination should not have gone beyond the terms of the conditional order of preclusion:

“A conditional order of preclusion requires a party to provide certain discovery by a date certain, or face the sanctions specified in the order” … . ” With this conditioning, the court relieves itself of the unrewarding inquiry into whether a party’s resistance was willful'” … . “When a plaintiff fails to timely comply with a conditional order of preclusion, the conditional order becomes absolute” … .

… [W]here, as here, a conditional order of preclusion specifies a penalty for the failure to comply, absent a change in circumstances, it is inappropriate for the court to impose a harsher penalty … . The Supreme Court improvidently exercised its discretion in barring the plaintiff from offering any evidence for any claim premised on the introduction of or which relies on the audio files the plaintiff failed to produce. Instead, the appropriate sanction was the one set forth in the conditional order of preclusion, which precluded the plaintiff from using the audio files and corresponding transcripts at trial unless she produced these items by a date certain, which she failed to do. Felice v Metropolitan Diagnostic Imaging Group, LLC, 2019 NY Slip Op 02067, Second Dept 3-20-19

 

You might also like
Agents of Property Owner Can Be Liable Under Labor Law 240(1)
COUNTY HAD AUTHORITY TO IMPOSE A WAGE FREEZE TO ADDRESS A FINANCIAL CRISIS.
HOMEOWNER’S EXCEPTION APPLIED TO HOMEOWNER BUT NOT TO AGENT OF HOMEOWNER WHO SUPERVISED THE WORK.
MEDICAL RECORDS DEMONSTRATED THE NEGLIGENT FAILURE TO DIAGNOSE A SEVERED NERVE; THEREFORE THE MEDICAL FACILITY WAS DEEMED TO HAVE HAD TIMELY NOTICE OF THE NATURE OF THE MALPRACTICE CLAIM; THE PETITION FOR LEAVE TO FILE AND SERVE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).
FATHER’S MOTION TO VACATE THE DEFAULT ORDER TERMINATING HIS PARENTAL RIGHTS SHOULD HAVE BEEN GRANTED; FATHER ATTEMPTED TO ATTEND THE HEARING, BUT WAS LATE; FATHER WAS ENTITLED TO COUNSEL BUT NONE HAD BEEN ASSIGNED; AND THERE WAS EVIDENCE HE DID NOT ABANDON THE CHILD (SECOND DEPT).
COMPLAINT AGAINST A FOSTER CARE AGENCY STATED CAUSES OF ACTION FOR NEGLIGENT PLACEMENT, LOSS OF THE CHILDREN’S SERVICES AND EXPENSES FOR THE CHILDREN’S CARE AND TREATMENT (SECOND DEPT).
FINDING OF CIVIL CONTEMPT AGAINST THE CHAIR OF THE NYS PAROLE BOARD WAS WARRANTED, ALTHOUGH ORDERED TO CONDUCT A DE NOVO HEARING ON PETITIONER-INMATE’S APPLICATION FOR RELEASE ON PAROLE, THE EVIDENCE SUPPORTED THE CONCLUSION THAT THE BOARD DENIED PAROLE BASED ON THE SEVERITY OF THE OFFENSE ALONE, WITHOUT CONSIDERING THE STRONG FACTORS WHICH FAVORED RELEASE (SECOND DEPT).
Seizure of Evidence from the Pocket of the Defendant After a Pat-Down Search on the Street Not Justified Under the “Inevitable Discovery” Exception to the Warrant Requirement—the Doctrine Does Not Apply to “the Very Evidence Obtained in the Illegal Search”—A Justification for the Search and Seizure Not Relied Upon by the People Below Can Not Be Raised on Appeal

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF WAS STRUCK BY A FACE PLATE WHICH FELL OFF AN AIR CONDITIONER, ALTHOUGH... PUBLIC POLICY PRECLUDED RECOVERY OF CHILD SUPPORT OVERPAYMENTS (SECOND DEPT...