Commercial Division Blog

Posted: May 3, 2023 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Seth D. Allen, Joshua Wurtzel, / Categories Commercial, Sanctions, Preclusion

Court Precludes Party From Introducing Exhibits And Witnesses And Objecting To Admissibility Of Other Party’s Exhibits

In an Opinion, dated March 31, 2023, in Kalamotousakis v. Karp, Index No. 655880/2019, Justice Melissa A Crane granted in part plaintiff’s motion in limine precluding defendants from introducing exhibits and witnesses at trial, as well as from objecting to the admissibility of plaintiff’s trial exhibits, but denied the motion to the extent it sought an order striking defendants’ answer and counterclaims.  The Court explained: 

The court finds that preclusion is an appropriate remedy for defendants' noncompliance with their pretrial obligations given their extensive history of flouting this court's prior orders.  Defendants' and defendants' counsel's ongoing pattern of discovery and pretrial noncompliance demonstrates their utter disregard for their obligations, both as attorneys and as parties in this litigation, and the court finds that their failure to comply with the deadlines in the Pre-Trial Order was willful and contumacious. 

"It is well settled that in order to impose the drastic remedy of preclusion, the court must determine that the offending party's failure to comply with discovery demands was willful, deliberate and contumacious" (Siegman v Rosen, 270 AD2d 14, 15, 704 N.Y.S.2d 40 [1st Dept 2000] [internal quotation marks and citations omitted]). "[W]illfulness can be inferred when a party repeatedly fails to respond to discovery demands and/or to comply with discovery orders, coupled with inadequate excuses for those defaults" (id.).

Throughout this case's litigation, the court has held numerous discovery conferences as a result of defendants' noncompliance with the court's orders. This includes the conferences attended on June 22, 2021, July 16, 2021, November 23, 2021, December 3, 2021, and directives contained in the court's orders dated September 23, 2021, October 21, 2021, December 3, 2021, and December 13, 2021, as well as the March 19, 2022 dated Pre-Trial Order. Additionally, the December 3, 2021 dated decision resolving MS 02, as well as prior and subsequent orders to it, also contained clear and express language that effectively warned defendants that their continued failure to comply with their discovery obligations or to follow the court's directives and orders would result penalties, as appropriate, such as waiver or preclusion (Does 69-70, 86-87). Importantly, defendants never asked the court for an extension of time to file and serve their witness lists or exhibit books, and their paper-thin excuse of "law office failure" is supported by nothing other than that bald statement in defense counsel's affirmation in opposition to this motion.

. . .

The court also finds that plaintiff has been prejudiced by defendants' willful and contumacious discovery and pretrial failures. Plaintiff has, at least, been prejudiced in his preparation for trial because he was not provided with defendants' proposed exhibits or witness lists within the time permitted to object, as this court requires, in a motion in limine. Permitting the defendants to serve late witness lists and exhibit books at this stage would require delaying the trial, which this court will not consider in this long-delayed 2019 case. Importantly, the defendants are, themselves, attorneys. They have been warned over and over by this court that their noncompliance will be punished by waiver, preclusion, or other penalties as appropriate.

While the remedy of preclusion is drastic, this case shows one egregious example of conduct that can result in such a remedy, and also that court set deadlines are not to be missed lightly. 

The attorneys at Schlam Stone & Dolan frequently litigate discovery disputes and motions for preclusion.  Contact the Commercial Division Blog Committee at if you or a client have questions concerning such issues.