Commercial Division Blog

Posted: November 13, 2016 / Categories Commercial, Discovery/Disclosure

Discovery Sanction Precluding Party From Offering Testimony or Evidence at Trial Upheld

On November 2, 2016, the Second Department issued a decision in Hasan v. 18-24 Luquer St. Realty, LLC, 2016 NY Slip Op. 07160, upholding a discovery sanction precluding a party from offering testimony or evidence at trial, explaining:

If a party refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed the court may make such orders with regard to the failure or refusal as are just. Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court. To invoke the drastic remedy of preclusion, the Supreme Court must determine that the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious. The willful and contumacious character of a party's conduct may be inferred from the party's repeated failure to comply with court-ordered discovery, and the absence of any reasonable excuse for those failures, or a failure to comply with court-ordered discovery over an extended period of time.

Here, AK Concrete, Inc. (hereinafter AK Concrete), failed to produce a witness for deposition in violation of six court orders issued over the course of four years. As a result, 18-24 Luquer Street Realty, LLC (hereinafter 18-24 Luquer), and A.A.D. Construction Corp. (hereinafter AAD Construction) moved, pursuant to CPLR 3126, to strike AK Concrete's pleadings and preclude it from offering evidence at trial, and Bricolage Architecture & Design, PLLC, Bricolage Design Association, and Bricolage Designs (hereinafter collectively Bricolage), separately moved, pursuant to CPLR 3126, to strike AK Concrete's pleadings. In opposition to the motions, counsel for AK Concrete stated that the only witness for AK Concrete, its principal, could not be located.

We agree with the Supreme Court that the contention of counsel for AK Concrete, that it was unable to locate its witness to ensure that he appeared for deposition, was inadequate to excuse its failure to comply with the court's discovery orders. The evidence demonstrates that counsel for AK Concrete failed to make efforts to contact the witness for almost two years during the pendency of the litigation, until after the fourth discovery order requiring AK Concrete to appear for deposition was issued. In addition, the evidence submitted by AK Concrete indicates that the witness was aware that litigation regarding AK Concrete, which required his participation, was ongoing. In light of AK Concrete's willful and contumacious conduct, the Supreme Court providently exercised its discretion in precluding AK Concrete from, among other things, offering any testimony or evidence at trial.

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