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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: January 19, 2017

Party Waived Right to Serve Discovery Demands by Disregarding Case Management Order Deadlines

On January 17, 2017, the First Department issued a decision in Vandashield Ltd v. Isaacson, 2017 NY Slip Op. 00259, holding that a party waived the right to serve discovery demands by failing timely to do so, explaining:

The court providently exercised its discretion in finding, on July 20, 2015, that defendants had waived their right to serve paper discovery demands by disregarding the deadlines set forth in two case management orders.

Citing nonbinding cases, defendants contend that the court could order preclusion only on a clear showing that their failure to comply with the case management orders was willful or contumacious. However, we have upheld preclusion even when a party’s behavior was neither willful nor contumacious.

Defendants contend that the sanction was disproportionate because their motion for a protective order stayed discovery pursuant to CPLR 3103(b). However, the statute says, “Service of a notice of motion for a protective order shall suspend disclosure of the particular matter in dispute” (emphasis added). Defendants’ motion for a protective order against plaintiffs’ discovery demands did not stay their obligation to serve their own discovery demands.

Defendants contend that the sanction was disproportionate because the reason for their delay in serving paper discovery demands was that the parties were engaged in settlement negotiations. However, as the motion court explained, defendants could have requested an extension of the discovery deadline on this basis but failed to do so.

(Internal citations omitted) (emphasis added).

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