Court Precludes Defendant From Using Documents It Failed To Produce During Discovery But Declines To Strike Affirmative Defense Or Impose Adverse Inference

Posted: July 17, 2026 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Discovery/Disclosure, Sanctions, Court Rules/Procedures

Court Precludes Defendant From Using Documents It Failed To Produce During Discovery But Declines To Strike Affirmative Defense Or Impose Adverse Inference

On April 28, 2026, in Sasson v. Bridger Consulting Group, Inc., Index No. 654872/2024, Justice Melissa A. Crane granted in part and denied in part plaintiff's motion for a preclusion order and an adverse inference.

The dispute concerned amounts allegedly owed to plaintiff under a note. Defendant asserted as an affirmative defense that a condition precedent had failed because it was in default with a purported senior creditor whose debt was senior to the note. In response to plaintiff's demand for documents relating to that defense, defendant produced only a handful of documents, most of which were already in the court's docket. After the court's document-discovery deadline passed and the note of issue was filed, plaintiff moved to preclude defendant from using any documents, testimony, or other evidence in support of the defense, to obtain an adverse inference that the unproduced documents would have been unfavorable to defendant, and for attorneys' fees. The court had previously warned in its scheduling orders that documents not produced during discovery would not be permitted at trial or on summary judgment. Granting the motion in part, the court explained:

[T]he court grants plaintiff's motion in part. Defendant is precluded from offering documents or other evidence that were not produced during discovery. The court will not, however, “preclude” or strike the third affirmative defense at this time, as this motion is not an appropriate vehicle for that relief. This denial is without prejudice to plaintiff seeking to dismiss the defense in a summary judgment motion, or to limit the proof concerning the defense in a motion in limine.

The court held that the preclusion extended to documents that were, or should have been, in defendant's possession, including emails between defendant and the senior creditor that defendant failed to produce in party discovery. It declined to impose an adverse inference, noting that the nonparty production plaintiff relied on had not been submitted in support of the motion, and denied attorneys' fees because plaintiff did not explain what fees were sought or show they were reasonable.

The attorneys at Schlam Stone & Dolan LLP frequently litigate discovery disputes, including motions for preclusion and other sanctions arising from a party's failure to comply with its discovery obligations. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.