Practice point: Appellate Division found that Supreme Court erred, as a matter of law, in denying plaintiffs' cross
motion to enforce the conditional order striking defendant's answer since defendant did not produce the specified materials within the identified
time period, and did not establish both a reasonable excuse for its
failure to timely produce the specified materials and the existence of a
meritorious claim or defense. Where a conditional order had previously
been entered based on the court's findings that a party had caused delay
and failed to comply with the court's discovery orders, the court was
not required to find that defendant's conduct in failing to comply with
the conditional order was willful.
Student note: Alternatively, defendant's failure to timely comply with three
court orders directing it to produce certain materials - one of which
was a conditional order striking its answer if defendant did not comply
within 45 days - warrants an inference of willful noncompliance.
Case: Keller v. Merchant Capital Portfolios, LLC, NY Slip Op 01163 (1st Dept. 2013).
Here is the decision.
Tomorrow's issue: Experts' opinions, and motions to dismiss a medical malpractice claim.
