Practice point: Defendant's motion to vacate the conditional order was denied as its conclusory and unsubstantiated claims of law office
failure cannot excuse its default in failing to oppose plaintiff's
motion for sanctions.
Alternatively, defendant's failure to timely and fully comply
with three court orders directing it to produce certain materials - one
of which was a conditional order striking defendant's answer if it did
not comply within 30 days - warrants an inference of willful
noncompliance. Such an inference is further supported by
defendant's failure to explain the numerous discrepancies between its
discovery responses and its employee's deposition testimony as to the
existence of responsive records. Importantly, defendant never offered any
explanation regarding its employee's testimony that highly relevant
records had been destroyed by flooding at some unspecified time, but
were preserved electronically.
Student note: The affidavit proffered by defendant regarding the unavailability of documents that were the
subject of the court's discovery order was insufficient, as it failed
to include any details as to when the search was performed, where the
subject records were likely to be kept, what efforts, if any, were made
to preserve them, whether such records were routinely destroyed, and whether a search was conducted in every location where the records
were likely to be found.
Case: Vasquez v. Lambert Houses Redevelopment Co., NY Slip Op 06439 (1st Dept. 2013).
Here is the decision.
Tomorrow's issue: Granting relief from an order or judgment.
