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Posted: December 29, 2016

Court Dismisses Both Complaint and Counterclaims for Discovery Abuses

On December 14, 2016, Justice Oing of the New York County Commercial Division issued a decision in Landmark Ventures, Inc. v. Gallucci, 2016 NY Slip Op. 32457(U), confirming a referee’s recommendation that both the plaintiff’s claims and the defendant’s counterclaims be dismissed as a discovery sanction, explaining:

Following a number of appearances for conference, JHO Gammerman conducted a hearing and issued a report dated February 10, 2014. At the hearing, JHO Gammerman recommended that both the complaint and the counterclaims be dismissed for failure by both plaintiff and defendant to comply with appropriate discovery. In making this recommendation, JHO Gammerman noted that he advised the parties on December 5, 2014 that if they failed to comply with their respective discovery obligations, he would recommend this matter be dismissed. He found no reason why the information that was ordered to be produced was not provided during the course of more than two months in which the parties had the opportunity to do so.

Prior to this matter being referred to JHO Gammerman, plaintiff had failed to comply with four separate court orders, apart from any additional directive issued by the JHO. This matter is now nearly five years old and the majority of document production is nowhere near completed. Having reviewed the report and the underlying papers, the Court finds JHO Gammerman’ s determination and findings are amply supported by the record and should not be disturbed.

Both sides’ dilatory tactics will be tolerated no longer. The parties failed by their respective motions to raise any mitigating circumstance as to why the Court should not confirm JHO Gammerman’s report and recommendation dismissing their respective claims. In this respect, the Court notes that the parties failed to obtain a so-ordered transcript from JHO Gammerman as directed by him following the February 10th hearing and waited ten months before making any motion with respect to his report, which was itself nearly two months after JHO Gammerman had to sua sponte file the report as a result of the parties’ failure to do as directed.

(Internal quotations and citations omitted).

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