Commercial Division Blog

Posted: April 26, 2023 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Sanctions, Discovery/Disclosure

Court Declines To Issue Sanctions For Discovery Violations But Suggests Significant Sanctions Would Follow If Defendant Failed To Comply

In a Decision and Order on Motion, dated March 30, 2023, in Zuckerbrot v. Lande, Index No. 655110/2020, Justice Joel M. Cohen granted in part plaintiffs’ motion concerning various discovery violations by defendant.  While noting significant violations, the Court declined, at the current juncture, to impose sanctions, explaining: 

Defendant submitted an affidavit indicating that she did not understand or was not adequately informed by prior counsel of her discovery obligations (NYSCEF 113). While that position strains credulity, the Court is mindful of the strong preference to decide cases on the merits rather than by default or sanction. But Defendant and her counsel must promptly remedy the situation. She is directed to provide written responses to Plaintiff's document requests and interrogatories within twenty days of this decision and order, complete document production within forty-five days, and provide a sworn certification that her responses are complete.

The Court will, for now, forego imposing sanctions pending Defendant's compliance with this order. Defendant should assume, however, that failure to comply with this final opportunity to participate responsibly in the discovery process will result in substantial sanctions. Further, given that the time period for Defendant to seek discovery from Plaintiff has expired, Defendant will have to seek leave of Court to extend the schedule to permit her to do so.

While courts have broad discretion in fashioning remedies for discovery abuses, as this case demonstrates, the strong preference to decide cases on the merits may result in a party being given one final chance to comply.  The attorneys at Schlam Stone & Dolan frequently litigate discovery disputes and motions for sanctions.  Contact the Commercial Division Blog Committee at if you or a client have questions concerning such issues.