Practice point: The drastic remedy of striking a pleading pursuant to CPLR 3126 will not be imposed unless the failure to comply with discovery demands or orders is willful and contumacious. Similarly, precluding a party from presenting evidence requires a showing of willful and contumacious conduct. Such 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 over an extended period of time.
Student note: The nature and degree of the penalty to be imposed pursuant to CPLR 3126 rests within the discretion of the motion court.
Case: Cioffi v. S.M. Foods, Inc., NY Slip Op 05741 (2d Dep't August 10, 2016)
Here is the decision.
Monday's issue: Non-employers, joint employers, and employment discrimination claims.
