The Appellate Division unanimously affirmed the Order which, to the extent appealed from, denied plaintiff's motions to strike the City defendants' answer or preclude the City from offering evidence at trial. Contrary to the City's contention, plaintiff's failure to submit an affirmation of good faith on her motion to strike the City's answer based on discovery failures was not fatal, in light of plaintiff's counsel's affirmation showing that the issue of whether the City's undisputedly late disclosures were willful, contumacious, or due to bad faith would not be resolved between the parties. However, plaintiff failed to demonstrate conclusively that the City's discovery failures were willful, contumacious or due to bad faith. Plaintiff's principal complaint is that the City disclosed new documents in support of its motion for summary judgment and on the eve of trial. She characterized the late disclosures as "guerilla" or "ambush" tactics, but did not explain how they affected her case. While the Appellate Division did not condone the City's actions, it agreed with the motion court that plaintiff failed to show that the late disclosures were part of a pattern to ignore or thwart discovery orders.
Practice point: If plaintiff did not believe that discovery was complete when she filed her note of issue, her remedy was to move to compel specific discovery.
Nugent v. City of New York, NY Slip Op 07715 (1st Dep't December 22, 2020)
