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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: September 26, 2020

Answer Struck Because of Defendant’s Failure Appear at Court Conferences or Respond to Discovery Demands

On September 11, 2020, Justice Borrok of the New York County Commercial Division issued a decision in Disoni LLC v. Montas, 2020 NY Slip Op. 33028(U), striking a defendant’s answer for failure to appear at court conferences or respond to discovery demands, explaining:

Rule 12 of the Rules of the Commercial Division provides the failure of counsel to appear for a conference may result in a sanction authorized by section 130.2.1 of the Rules of the Chief Administrator or section 202.27, including dismissal, the striking of an answer, an inquest or the direction of judgment, or other appropriate sanction. In addition, Rule 13 requires strict compliance with all discovery obligations and provides that noncompliance with a discovery order may result in the imposition of sanctions under CPLR § 3126.

Here, Disoni served copies of the summons and complaint on Mr. Montas by delivering the same Mr. Montas’s home address on April 20, 2018. Disoni also mailed copies of the summons and complaint to Mr. Montas’ s home address by First-Class Mail on April 30, 2018. Mr. Montas failed to timely file an answer or notice or appearance or otherwise make a motion. On September 24, 2018, Disoni filed a motion for default judgment. However, pursuant to a stipulation, dated October 8, 2018, Disoni withdrew its motion for default judgment and agreed to a 30-day extension of Mr. Montas’s time to file an answer.

Mr. Montas filed an answer on October 26, 2018. The parties appeared for a preliminary conference on August 2, 2019. In accordance with the discovery schedule set by the court at the Preliminary Conference, on September 5, 2019, Disoni served its Notice for Discovery and Inspection. Mr. Montas has failed to serve any responses or objections or produce any responsive documents.

On December 11, 2019, Mr. Montas’s counsel moved by order to show cause to be relieved as counsel. By decision and order, dated January 7, 2020, the court granted the motion to be relieved as counsel, ordered the withdrawing counsel to forward notice to Mr. Montas directing him to appoint substitute counsel within 30 days or notify the court if he intends to represent himself, issued a stay of the proceedings for a period of 40 days, and scheduled a status conference for February 27, 2020 at 11:30 AM. Mr. Montas failed to retain new counsel or appear pro seat the status conference on February 27, 2020. The court scheduled another status conference for March 13, 2020 at 11:30 AM and ordered that if the defendant fails to appear for the next conference, then the plaintiff may move for all appropriate relief. Mr. Montas once again failed to appear for the status conference on March 13, 2020, and the court ordered that the plaintiff may move for all appropriate relief by 4/3/2020.

As a result of Mr. Montas’ repeated and unexplained failures to appear at court-ordered status conferences and comply with his discovery obligations, Disoni’s motion is granted pursuant to CPLR § 3126 and Rules 12 and 13 of the Rules of the Commercial Division, Mr. Montas’ answer is stricken, and this matter will be set down for an inquest on damages.

(Internal quotations and citations omitted).

If you are served with a complaint and fail timely to answer, or if you answer and do not appear at schedule court appearances, the court can enter judgment against you. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding whether you have been properly served or if a default judgment has been entered against you.

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