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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: February 23, 2017

Party Waived Right to Seek Objected-To Discovery By Not Making Timely Motion to Compel

On February 14, 2017, Justice Oing of the New York County Commercial Division issued a decision in New York University v. International Brain Research Foundation, Inc., 2017 NY Slip Op. 30291(U), holding that a party waived its right to seek discovery by not making a timely motion to compel its production, explaining:

Defendant now moves for an order, pursuant to CPLR 3402 and 22 NYCRR § 202.2l(c), striking the note of issue, and, pursuant to CPLR 3124, compelling plaintiffs to comply with discovery requests. In the alternative, defendant seeks an order, pursuant to CPLR 3126, for appropriate relief.

Defendant’s motion is denied in its entirety. As an initial matter, defendant’s motion is essentially one to compel plaintiffs to provide responsive documents to the December 2013 notice for discovery and inspection and it is therefore untimely. After resolution of plaintiffs’ motion to dismiss the second amended counterclaims, continued discovery in this action was permitted for the sole purpose of allowing defendant an opportunity to conduct an EBT of a principal of plaintiff or, if not conducted, defendant would be deemed to have waived such EBT. During the time period leading to Carna’s EBT, there was no indication from defendant that it was seeking documents from discovery demands made in December 2013.

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