Gorbatov v Tsirelman, 206 AD3d 887, 889-90 [2d Dept 2022] is a good reminder about complying with discovery demands in litigation, The court held:
“Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party ‘refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed’ ” (Aha Sales, Inc. v. Creative Bath Prods., Inc., 110 A.D.3d 1019, 1019, 973 N.Y.S.2d 791, quoting CPLR 3126). “If a party served with a demand for a bill of particulars willfully fails to provide particulars which the court finds ought to have been provided …, the court may make such final or conditional order with regard to the failure or refusal as is just, including such relief as is set forth in [CPLR 3126]” (CPLR 3042[d]). The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the court (see Smookler v. Dicerbo, 166 A.D.3d 838, 839, 88 N.Y.S.3d 235). “The drastic remedy of striking a pleading is appropriate when there is a clear showing that the failure to comply with discovery demands or orders was willful and contumacious” (Henry v. Atlantis Rehabilitation & Residential Healthcare Facility, LLC, 194 A.D.3d 1021, 1022, 149 N.Y.S.3d 217; see CPLR 3126[3]; Gafarova v. Yale Realty, LLC, 174 A.D.3d 862, 863, 106 N.Y.S.3d 122). Moreover, “[t]he willful or 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 a reasonable excuse for these failures, or by the failure to comply with court-ordered discovery over an extended period of time” (Nationstar Mtge., LLC v. Jackson, 192 A.D.3d 813, 815, 144 N.Y.S.3d 81 [internal quotation marks omitted]; see Henry v. Atlantis Rehabilitation & Residential Healthcare Facility, LLC, 194 A.D.3d at 1022–1023, 149 N.Y.S.3d 217).
Here, the Supreme Court providently exercised its discretion in granting those branches of the defendants’ motions which were to strike the complaint upon finding, inter alia, that the plaintiffs’ repeated disregard of the defendants’ demands for discovery and bills of particulars, the plaintiffs’ failure to provide responses to the demands despite having participated in discovery conferences wherein they stipulated to provide such responses, the plaintiffs’ inadequate responses when they did respond, and the absence of an adequate excuse for these failures constituted willful and contumacious behavior (see Sparakis v. Gozzer Corp., 177 A.D.3d 1011, 1012–1013, 113 N.Y.S.3d 272; Williams v. Suttle, 168 A.D.3d 792, 793–794, 91 N.Y.S.3d 447).
Contrary to the plaintiffs’ contention, the length of the demands for bills of particulars did not, in and of itself, make the demands oppressive or burdensome, especially in light of the length and generality of the complaint (see Singh v. Kalish, 153 A.D.2d 621, 624, 544 N.Y.S.2d 654; Malan Constr. Corp. v. Allis–Chalmers Mfg. Co., 35 A.D.2d 788, 788–789, 315 N.Y.S.2d 258). Further, to the extent that the defendants’ demands sought amplification of the complaint, they were proper (see Singh v. Kalish, 153 A.D.2d at 624, 544 N.Y.S.2d 654; Malan Constr. Corp. v. Allis–Chalmers Mfg. Co., 35 A.D.2d at 788–789, 315 N.Y.S.2d 258).
The Supreme Court also properly rejected the plaintiffs’ proffered justification that they could not respond to the defendants’ demands without the defendants’ production of the plaintiffs’ files. Although this Court recognized in a prior determination of appeals in this action that certain facts essential for the plaintiffs to make more specific allegations were in the possession of the defendants (see Gorbatov v. Tsirelman, 155 A.D.3d 836, 839, 65 N.Y.S.3d 71), the plaintiffs failed to demand such discovery until September 2018—almost a year after this Court issued that determination and months after the defendants had filed their separate motions, inter alia, to strike the complaint. The plaintiffs’ demand was made more than two years after the Tsirelman defendants’ demands, more than three years after Kucherovsky’s demands, and months after the issuance of the January 2018 and May 2018 orders directing compliance with the defendants’ demands. Moreover, the plaintiffs never moved to compel the disclosure and did not provide the defendants with any documentary disclosure at all.
Under these circumstances, the Supreme Court providently exercised its discretion in granting those branches of the defendants’ motions which were to strike the complaint (see Sparakis v. Gozzer Corp., 177 A.D.3d at 1012–1013, 113 N.Y.S.3d 272; Williams v. Suttle, 168 A.D.3d at 793–794, 91 N.Y.S.3d 447).
Richard A. Klass, Esq.
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