Commercial Division Blog

Posted: December 7, 2020 / Categories Commercial, Discovery/Disclosure, Sanctions

Complaint Struck as Discovery Sanction

On November 25, 2020, the Second Department issued a decision in Allstar Electronics, Inc. v. R. Scott DeLuca, 2020 NY Slip Op. 07018, affirming a decision striking a complaint as a discovery sanction, explaining:

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who refuses to comply with court-ordered discovery is a matter within the discretion of the court. The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands or court-ordered discovery was the result of willful and contumacious conduct. The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to respond to demands or to comply with discovery orders, and the absence of any reasonable excuse for these failures.

Here, contrary to the plaintiff's contention, the willful and contumacious character of its conduct could properly be inferred from its repeated failures, without an adequate excuse, to timely respond to discovery demands and to comply with the Supreme Court's orders to provide outstanding discovery and set a date for the plaintiff's deposition.

(Internal quotations and citations omitted).

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

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