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Current Developments in the Commercial Divisions of the
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Posted: November 15, 2015

Failure Timely to Comply With Conditional Preclusion Order Causes Order to Become Absolute

On November 12, 2015, the Second Department issued a decision in Mona & Jack’s Clothing, Inc. v. Ola, Inc., 2015 NY Slip Op. 08151, reversing an order giving a party that failed to comply with a conditional preclusion order another chance to provide discovery.

In Mona & Jack’s Clothing, the IAS court issued “a conditional order of preclusion directing the plaintiff, within 60 days of the order, to provide the defendants with ‘a response to their demand for documentation regarding its damages claims’ and ‘its expert report on damages,’ or be ‘precluded from offering such at trial or in any motion.'”

The plaintiff failed to comply with the conditional order. Yet when the defendant moved to dismiss the complaint for failure to comply with the order, the IAS court gave the plaintiff another chance to comply. The defendant appealed. On appeal, the Second Department reversed, explaining:

As a result of the plaintiff’s failure to timely comply with the conditional order of preclusion, that conditional order became absolute. To be relieved of the adverse impact of the conditional order, the plaintiff was required to demonstrate a reasonable excuse for its failure to comply with the order and the existence of a potentially meritorious cause of action. The plaintiff failed to demonstrate either.

(Internal quotations and citations omitted) (emphasis added).

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