Practice point: The Appellate Division determined that the motion court providently exercised its discretion
in conditionally granting plaintiff's CPLR 3126 motion to strike the appellant's answer and
third-party complaint unless she appeared for a deposition on a
specified date. The appellant repeatedly failed to comply with the discovery orders, including the failure to provide supplemental
responses to certain interrogatories and to appear for a deposition. At
the time that the court ordered that the parties' depositions be
conducted on a specified date, two prior court-ordered deadlines had
passed, and the case was almost five years old. Moreover, the
appellant's excuse for failing to appear on the specified date, even though her counsel had confirmed her appearance prior to
that date, was not reasonable. Furthermore, the motion court only
conditionally granted that branch of the plaintiff's motion which was to
strike the appellant's pleadings, and provided the appellant an
additional date to appear for a deposition.
Student note: The striking of a party's pleading is a drastic remedy only warranted
where there has been a clear showing that the failure to comply with court-ordered discovery was willful and contumacious. Willful and contumacious conduct may be inferred from a
party's repeated failure to comply with court-ordered discovery, coupled
with inadequate explanations for the failures to comply or a failure to
comply with court-ordered discovery over an extended period of time.
Case: Gutman v. Cabrera, NY Slip Op 07328 (2d Dept. 2014)
Here is the decision.
Wednesday's issue: Submitting interrogatories to a jury.
