Practice point: Sanctions were inappropriate because plaintiff waived his right to
challenge deficiencies in defendant's responses to discovery orders by filing a
note of issue and certificate of readiness representing that all discovery had
been completed and that there were no outstanding discovery requests.
Student note: In any event, denial of the motion to strike would not have
constituted an abuse of discretion, given that the defendant ultimately
complied with the order to produce its employee a month after the court-ordered
deadline, and the defendant’s conduct during pre-note of issue discovery
proceedings did not amount to willful and contumacious behavior. The court
properly considered the defendant’s opposition papers, given that plaintiff did
not show prejudice by the late service, and had, in fact, submitted reply and
supplemental reply affirmations.
Case: Marte v. City of New York, NY
Slip Op 00387 (1st Dept. 2013).
Here is the decsion.
Tomorrow’s issue: At-will employment and fraudulent inducement.
