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Defendant’s Failure to Comply with Discovery Orders Warranted Striking the Answer

The Second Department determined defendant’s answer was properly struck due to defendant’s failure to comply with the court’s orders concerning discovery:

“[A] trial court is given broad discretion to oversee the discovery process” … . When a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is within the court’s discretion to strike the “pleadings or parts thereof” (CPLR 3126[3]) as a sanction against such party … . However, public policy favors the resolution of cases on the merits … . Accordingly, “the drastic remedy’ of striking a pleading pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious” … . “Willful and contumacious conduct may be inferred from a party’s repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply . . . with court-ordered discovery over an extended period of time” … .

Here, the plaintiff moved to strike the answer insofar as asserted by the defendant Roger Powell (hereinafter the defendant) almost three years after commencing this action. At that time, the defendant still had not appeared for a deposition, despite numerous “so-ordered” extensions entered into between counsel for the parties, and in violation of a court order directing him to appear for such deposition. In opposition to the motion, defense counsel’s investigator stated that he had been unable to locate the defendant. Under these circumstances, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff’s motion which was to strike the answer insofar as asserted by the defendant and to direct an inquest against him … . Stone v Zinoukhova, 2014 NY Slip Op 05532, 2nd Dept 7-30-14

 

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