Commercial Division Blog

Posted: August 25, 2023 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Discovery/Disclosure, Sanctions, Default Judgment

Defendants' Answer Stricken for Failure to Comply With Discovery Orders

On July 10, 2023, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in Kaiping Hong-Ri Garment Co. Ltd. v. Goldfarb, 2023 NY Slip Op 32459(U), striking defendants' answer and entering a default judgment because of defendants' failure to comply with the court's discovery orders, explaining:

Based on the foregoing, Plaintiff's motion is granted. "Although actions should be resolved on the merits wherever possible, a court may, inter alia, strike the 'pleadings or parts thereof as a sanction against a party who 'refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed [upon notice]'" [**3] (Herrera v City of New York, 238 AD2d 475, 475-76, 656 N.Y.S.2d 647 [2d Dept 1997] [internal citation omitted]; CPLR 3126 [3]). "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 is willful and contumacious" (Mears v Long, 149 AD3d 823, 52 N.Y.S.3d 124 [2d Dept 2017]). Here, Defendants' willful and contumacious conduct can be inferred from its repeated failure to comply with Court Orders [*4] directing disclosure (Lucas v Lawrence Stam, Susan Gordon, Martin Clearwater & Bell, LLP, 147 AD3d 921, 925, 48 N.Y.S.3d 150 [2d Dept 2017]; Brandenburg v County of Rockland Sewer Dist. #£1, 127 AD3d 680, 681 [2d Dept 2015]).

Defendants' submission of its "response" to Plaintiff's first request for production of documents dated March 23, 2022 on April 18, 2023 is neither timely nor adequate given that the Court was already aware of this submission, which Defendants themselves advised was not complete (NYSCEF 40). Even when given a further opportunity to file opposition to this motion, Defendants failed to do so, thus offering no excuse for their failure to comply. Accordingly, Plaintiff's motion to strike the Defendants' answer is granted.

In these circumstances, entry of a default judgment against Defendants in the amount demanded in the complaint ($636,139.79 plus statutory interest from April 7, 2020) is appropriate (see Mears, 149 AD3d at 824 ["[T]he defendants' willful and contumacious conduct can be inferred from their repeated failures, without an adequate excuse, to comply with discovery demands and the Supreme Court's discovery orders. Accordingly, the court providently exercised its discretion in granting the plaintiffs' motion pursuant to CPLR 3126 to strike the defendants' answer and for leave to enter a default judgment against the defendants"] [internal citations omitted]). The amount sought by [*5] Plaintiff is a sum certain based on a Judgment of Non-Dischargeability awarded to Plaintiff in Southern District of New York.

As this case shows, a party's repeated failure to comply with court orders can result in that party's pleading being stricken. Contact the Commercial Division Blog Committee at if you or a client have questions concerning sanctions motions.