Allstar Elecs., Inc. v DeLuca, 188 AD3d 1121 [2d Dept 2020] is a good reminder that, even in the context of a legal malpractice case, the party bringing the lawsuit must be prepared to produce all discovery responses to the other side in a timely fashion or risk the complaint being dismissed. The court held:
“The nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who refuses to comply with court-ordered discovery is a matter within the discretion of the court” (Smookler v. Dicerbo, 166 A.D.3d 838, 839, 88 N.Y.S.3d 235; see Pastore v. Utilimaster Corp., 165 A.D.3d 685, 686, 84 N.Y.S.3d 547; Quinones v. Long Is. Jewish Med. Ctr., 90 A.D.3d 632, 933 N.Y.S.2d 907). The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands or court-ordered discovery was the result of willful and contumacious conduct (see Ozeri v. Ozeri, 135 A.D.3d 838, 839, 23 N.Y.S.3d 363; McArthur v. New York City Hous. Auth., 48 A.D.3d 431, 851 N.Y.S.2d 271). “The willful and contumacious character of a party’s conduct can be inferred from the party’s repeated failure to respond to demands or to comply with discovery orders, and the absence of any reasonable excuse for these failures” (Tos v. Jackson Hgts. Care Ctr., LLC, 91 A.D.3d 943, 943–944, 937 N.Y.S.2d 629; see Smookler v. Dicerbo, 166 A.D.3d at 839, 88 N.Y.S.3d 235; Commisso v. Orshan, 85 A.D.3d 845, 925 N.Y.S.2d 612).
Here, contrary to the plaintiff’s contention, the willful and contumacious character of its conduct could properly be inferred from its repeated failures, without an adequate excuse, to timely respond to discovery demands and to comply with the Supreme Court’s orders to provide outstanding discovery and set a date for the plaintiff’s deposition (see Marino v. Armogan, 179 A.D.3d 664, 666, 113 N.Y.S.3d 613; Broccoli v. Kohl’s Dept. Stores, Inc., 171 A.D.3d 846, 847–848, 97 N.Y.S.3d 660; Smookler v. Dicerbo, 166 A.D.3d at 839–840, 88 N.Y.S.3d 235; Montemurro v. Memorial Sloan–Kettering Cancer Ctr., 94 A.D.3d 1066, 1066–1067, 942 N.Y.S.2d 623).
R. A. Klass
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