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Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: August 10, 2019

Discovery Sanctions Denied for Failure to Explain in Detail Movant’s Efforts to Resolve the Dispute

On August 7, 2019, the Second Department issued a decision in Bronstein v. Charm City Hous., LLC, 2019 NY Slip Op. 06058, denying discovery sanctions because of the movant’s failure to explain in detail its efforts to resolve the dispute, explaining:

Pursuant to 22 NYCRR 202.7(a) and (c), a motion relating to disclosure must be accompanied by an affirmation from moving counsel attesting to a good faith effort to resolve the issues raised in the motion, including the time, place and nature of the consultation as well as the issues discussed. Here, the affirmation of good faith submitted by the defendants’ counsel in support of the cross motion for sanctions pursuant to CPLR 3126 failed to provide any detail of the claimed efforts to resolve the issues. While the defendants’ counsel asserted that he had conversations with the plaintiff’s counsel, he did not identify the dates of such conversations or the name of the attorney with whom he conversed. Therefore, the cross motion should have been denied.

(Internal citations omitted) (emphasis added).

A big part of complex commercial litigation is giving, receiving and evaluating evidence (this is called “discovery”). A litigant can be sanctioned for failing to provide discovery. 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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