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Court Upholds Striking Answer As Sanction For Failure To Comply With Discovery Demands And Discovery Orders

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  • Posted on: Apr 26 2017

Litigants and their attorneys who fail to comply with discovery demands and/or discovery orders do so at their peril. Such non-compliance can lead to penalties and sanctions, especially when the non-compliance arises from deliberate behavior.

When a party deliberately fails to comply with discovery demands and/or discovery orders, the requesting party may file a motion to compel compliance pursuant to Section 3124 of the Civil Practice Rules and Procedure (“CPLR”) or a motion to preclude evidence pursuant to CPLR 3126. A motion under CPLR 3126 may result in an order against the recalcitrant party, including preclusion of evidence in support of, or in opposition to, a claim or defense, or striking all or part of a pleading. While striking a pleading is a drastic remedy, the courts in New York will do so when the non-compliant party demonstrates a willful or contemptuous pattern of behavior.

New York appellate courts have repeatedly granted preclusive relief under CPLR 3126 as a means of addressing recalcitrant parties who fail to comply with discovery demands and/or discovery orders. E.g., Flax v. Standard Sec. Life Ins. Co. of N.Y., 150 A.D.2d 894 (3d Dept. 1989) (holding that the plaintiff’s failure to comply with a preclusion order requiring him to file a verified and responsive bill of particulars entitled the defendants to a dismissal of the entire complaint); Neveloff v. Faxton Children’s Hospital & Rehabilitation Center, 227 A.D.2d 457, 458 (2d Dept. 1996); Figdor v. City of New York, 33 A.D.3d 560 (1st Dept. 2006); Brandenburg v. County of Rockland Sewer Dist. #1, State of N.Y., 127 A.D.3d 680, 681 (2d Dept. 2015); Shah v. Oral Cancer Prevention Intl., Inc., 138 A.D.3d 722 (2d Dept. 2016); Lucas v. Stam, 147 A.D.3d 921 (2d Dept. Mar. 29, 2017). In doing so, they have “encourage[d] the [trial] courts to employ a more proactive approach … upon learning that a party has repeatedly failed to comply with discovery orders. . . .” Figdor, 33 A.D.3d at 560.

This “more proactive approach” comports with the concerns expressed by the New York Court of Appeals not too long ago about the impact of dilatory tactics on the functioning of the court system and the adjudication of claims:

…there is also a compelling need for courts to require compliance with enforcement orders if the authority of the courts is to be respected by the bar, litigants and the public.


As this Court has repeatedly emphasized, our court system is dependent on all parties engaged in litigation abiding by the rules of proper practice. The failure to comply with deadlines not only impairs the efficient functioning of the courts and the adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent.

Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution. Furthermore, those lawyers who engage their best efforts to comply with practice rules are also effectively penalized because they must somehow explain to their clients why they cannot secure timely responses from recalcitrant adversaries, which leads to the erosion of their attorney-client relationships as well. For these reasons, it is important to adhere to the position we declared a decade ago that “[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity.”

Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 81 (2010) (quoting Kihl v. Pfeffer, 94 N.Y.2d 118, 123 (1999).

On April 12, 2017, the Appellate Division, Second Department continued the trend of sanctioning willful and contumacious behavior. In Mears v. Long, 2017 NY Slip Op. 02782, the Court affirmed the order of the motion court granting the plaintiffs’ motion to strike the defendants’ answer and for leave to enter a default judgment against them based on their failure to comply with court-ordered discovery. In doing so, the Court explained:

The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is within the broad discretion of the motion court. 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. The willful and contumacious character of a party’s conduct can be inferred from the party’s repeated failure to comply with discovery demands or orders without a reasonable excuse.

Here, the 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.


As the Court of Appeals observed in Gibbs, the legal system depends upon the parties’ compliance with the rules of practice and the court’s orders. A party’s failure to comply with deadlines and orders “not only impairs the efficient functioning of the courts”, but also jeopardizes a party’s ability to support or oppose the claims and defenses in the action. Mears reinforces these principles and warns that willful and contumacious behavior will not be countenanced by the courts.

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