Commercial Division Blog

Posted: January 20, 2018 / Categories Commercial, Discovery/Disclosure, Sanctions

Limited Record Before Trial Court Did Not Justify Striking Answer as Discovery Sanction

On January 17, 2018, the Second Department issued a decision in PAL Envtl. Servs., Inc. v. LJC Dismantling Corp., 2018 NY Slip Op. 00301, reversing an order granting a discovery sanction, explaining:

As public policy strongly favors the resolution of actions on the merits whenever possible, the striking of a party's pleading is a drastic remedy which is warranted only where there has been a clear showing that the failure to comply with discovery is willful and contumacious. The burden of establishing that a failure or refusal to disclose was the result of willful, deliberate, or contumacious conduct rests with the party seeking an order of preclusion.

Here, the vast majority of the documents and other responses provided by the defendant were not submitted as part of the plaintiff's motion papers, and are not part of the record. The very limited evidence before the Supreme Court was insufficient to establish that the defendant failed to substantially comply with the terms of the stipulation, let alone that any such failure was willful or contumacious. Accordingly, the court erred in granting that branch of the plaintiff's motion which was pursuant to CPLR 3126(3) to strike the defendant's answer.

(Internal citations omitted).

A big part of complex commercial litigation is giving, receiving and evaluating evidence (this is called "discovery"). This decision discusses the problem of litigants not performing their discovery obligations. Contact Schlam Stone & Dolan partner John Lundin at if you or a client has a question regarding discovery obligations (and what to do if a litigant is not honoring those obligations).