Practice point: The plaintiffs served a response to the defendant's
notice for discovery and inspection, and answers to interrogatories, as
they were directed to do by court order. Thereafter, they produced
further documents, as set forth in a stipulation. The Appellate Division determined that, while the defendant
was clearly dissatisfied with the responses to his demands, there was no
showing of a pattern of willful failure to respond to discovery demands
or comply with disclosure orders, so as to justify dismissing the
complaint and striking the reply to counterclaims.
Student note: The determination whether to strike a pleading lies within the sound discretion of the trial court, pursuant to CPLR 3126[3]. It is a drastic remedy that is not
appropriate absent a clear showing that the failure to comply with
discovery demands was willful or contumacious.
Case: Holand v. Cascino, NY Slip Op 07474 (2d Dept. 2014)
Here is the decision.
Monday's issue: An inaccurate notice of claim.
