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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: February 27, 2021

Second Department Upholds Sanction for Failure to Appear at Deposition

On February 17, 2021, the Second Department issued a decision in Kopelevich & Feldsherova, P.C. v. Geller Law Group, P.C., 2021 NY Slip Op. 01034, upholding sanctions for failure to appear at a deposition, explaining:

The defendants’ attorney attempted to confirm the date of Geller’s continued deposition by email on December 26, 2018, and January 22, 2019. In response, on January 22, 2019, the plaintiff’s attorney requested that the defendants agree to hold the deposition in February, after the deadline had passed. The plaintiff’s attorney stated that his client was away on a previously scheduled vacation and wanted to be present at the deposition. The defendants’ attorney declined to consent to delay the deposition absent permission from the Supreme Court, and informed the plaintiff’s attorney that Geller would be produced on January 28, 2019. The plaintiff did not seek an extension from the court.

After the plaintiff’s attorney failed to appear to conduct the deposition on January 28, 2019, the defendants moved pursuant to CPLR 3126 to preclude the plaintiff from conducting any further deposition of Geller. The plaintiff cross-moved pursuant to CPLR 3126 to preclude those defendants from offering any evidence at trial and to resolve certain issues in favor of the plaintiff. By order dated March 15, 2019, the Supreme Court granted the defendants’ motion, and granted the plaintiff’s cross motion only to the extent of precluding the defendants from offering any evidence at trial and resolving certain issues in favor of the plaintiff if the defendants did not, within 14 days, either produce certain outstanding document discovery or provide an affidavit stating that the requested materials were not in their possession. The plaintiff appeals.

Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court. Absent an improvident exercise of discretion, the determination to impose sanctions for conduct that frustrates the purpose of the CPLR should not be disturbed.

If a party refuses to obey an order for disclosure or willfully fails to disclose information, the court may dismiss the action. Before a court invokes the drastic remedy of striking a pleading, or even of precluding evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious. A court can infer that a party is acting willfully and contumaciously through the party’s repeated failure to respond to demands or to comply with discovery orders.

Here, the plaintiff’s attorney sought to postpone Geller’s continued deposition less than a week before the deadline set by the Supreme Court, based on previously scheduled travel of his client, not based on the attorney’s own unavailability or circumstances outside of his control. The plaintiff was informed that the defendants’ attorney would not consent to an adjournment of the deposition beyond the deadline set by the court without the court’s prior consent. The plaintiff’s attorney made no attempt to seek an extension of the deadline from the court. Nevertheless, the plaintiff’s attorney opted not to appear to continue the deposition of Geller, wilfully disregarding the deadline. Accordingly, the court providently exercised its discretion in precluding any further deposition of Geller.

(Internal quotations and citations omitted).

The scope of discovery in New York is broad. 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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