What are the penalties for refusing to comply with discovery orders?

If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them:

1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or

2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or

3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.

Regrettably, it is not only the law but also the scenario that is all too familiar (see, e.g., Tewari v Tsoutsouras, 75 NY2d 1, 10-11; Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 571-572; Laverne v Incorporated Vil. of Laurel Hollow,

[94 N.Y.2d 123]

18 NY2d 635, 637, appeal dismissed 386 US 682). If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity. Indeed, the Legislature, recognizing the need for courts to be able to command compliance with their disclosure directives, has specifically provided that a "court may make such orders * * * as are just," including dismissal of an action (CPLR 3126). Finally, we underscore that compliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests meaningfully.

It is axiomatic that parties are entitled to liberal discovery of "all matters material and necessary in the prosecution" of their action (CPLR 3101 [a]), and the determination of what is "material and necessary" is within the sound discretion of the trial court (see e.g. Andon v 302304 Mott Assocs., 94 NY2d 740 [2000]). The phrase "material and necessary" is "interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Publishing Co., 21 NY2d 403 [1968]; Foster v Herbert Clepoy Corp., 74 AD3d 1139 [2d Dept 2010]). The foregoing standards vest in the trial court broad discretion to supervise discovery and issue such determinations as necessary to vindicate litigant rights and enforce litigant duties arising in the individual case (see Mironer v City of New York, 79 AD3d 1106, 1108 [2d Dept 2010]; Auerbach v Klein, 30 AD3d 451, 452 [2d Dept 2006]). Where the court determines that relevant discovery was withheld, the usual remedy is a CPLR 3124 order to compel such disclosure. The CPLR 3126 remedy of dismissing a plaintiff's complaint as a consequence of a discovery violation is a drastic one requiring the defendant to show that the plaintiff's conduct was willful and contumacious (see Greene v Mullen, 20 AD3d 996 [2d Dept 2010]; Maiorino v City of New York, 39 AD3d 601 [2d Dept 2007]; Kingsley v Kantor, 265 AD2d 529 [2d Dept 1999]). This showing, in turn, requires proof of a substantial pattern of noncompliance over time coupled with a lack of excuse (see e.g. Estaba v Quow, 101 AD3d 940 [2d Dept 2012]; Dokaj v Ruxton Tower Ltd. Partnership, 91 AD3d 812 [2d Dept 2012]). Conversely, where the court finds that discovery demands are improper, it may issue a protective order against such discovery to "prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the

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courts" (CPLR 3103 [a]).

In accordance with CPLR 3126:

“[i]f any party ... refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: ...

“3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party” (CPLR 3126[3]).

As we stated in Kihl v. Pfeffer, “[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity” (94 N.Y.2d 118, 123, 700 N.Y.S.2d 87, 722 N.E.2d 55 [1999]). Compliance requires “a timely response and one that evinces a good-faith effort to address the requests meaningfully” (id.). A trial court has discretion to strike pleadings under CPLR 3126 when a party's repeated noncompliance is “dilatory, evasive, obstructive and ultimately contumacious” (see Arts4All, Ltd. v. Hancock, 54 A.D.3d 286, 286, 863 N.Y.S.2d 193 [1st Dept.2008], affd.12 N.Y.3d 846, 881 N.Y.S.2d 390, 909 N.E.2d 83 [2009], and affd.13 N.Y.3d 812, 890 N.Y.S.2d 432, 918 N.E.2d 945 [2009]).

Apart from CPLR 3126, a court has inherent power to address actions which are meant to undermine the truth-seeking function of the judicial system and place in question the integrity of the courts and our system of justice.

“Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates, and, as a corollary to this proposition, to preserve themselves and their officers from the approach and insults of pollution” (Anderson v. Dunn, 19 U.S. 204, 227, 6 Wheat. 204, 5 L.Ed. 242 [1821]).

A trial court is authorized by CPLR 3126 to fashion an appropriate remedy for a party's failure to cooperate with discovery, and the sanction imposed is not disturbed in the absence of a clear abuse of discretion (see Matter of Scaccia, 66 A.D.3d 1247, 1250, 891 N.Y.S.2d 484 [2009]; O'Brien v. Clark Equip. Co., 25 A.D.3d 958, 960, 807 N.Y.S.2d 703 [2006]). However, the remedy of preclusion is drastic, especially where, as here, it has the effect of preventing a party from asserting its claim (see Vatel v. City of New York, 208 A.D.2d 524, 525, 617 N.Y.S.2d 61 [1994]), and is therefore “reserved for those instances where the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious” (Matter of Duma v. Edgar, 58 A.D.3d 1085, 1086, 873 N.Y.S.2d 747 [2009] [internal quotation marks and citation omitted]; accord Kumar v. Kumar, 63 A.D.3d 1246, 1248, 881 N.Y.S.2d 518 [2009]; see CPLR 3126[2]).

"The nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter generally left to the discretion of the Supreme Court" (Reyes v Vanderbilt, 303 AD2d 391 [2003], citing Patterson v New York City Health & Hosps. Corp. [Queens Hosp. Ctr.], 284 AD2d 516 [2001]). Before invoking the drastic remedy of striking a pleading, however, the "court must determine that the party's failure to comply with a disclosure order was the result of willful, deliberate, and contumacious conduct or its equivalent" (Reyes v Vanderbilt, supra at 392; see CPLR 3126; Viteritti v Gelfand, 289 AD2d 566, 567 [2001]; Solomon v Horie Karate Dojo, 283 AD2d 480, 480-481 [2001]; Cianciolo v Trism Specialized Carriers, 274 AD2d 369, 370 [2000]).

Here, the Supreme Court providently exercised its discretion in striking Hardy's answer based upon his failure to appear for court-ordered depositions on three occasions. The willful and contumacious character of Hardy's failure to appear can be inferred from his repeated failure to comply with the court orders directing his appearance, all of which were entered upon

[38 A.D.3d 822]

his counsel's consent, and the lack of an adequate excuse for his failure to appear (see Xina v City of New York, 13 AD3d 440, 441 [2004]; Kroll v Parkway Plaza Joint Venture, 10 AD3d 633 [2004]; Beneficial Mtge. Corp. v Lawrence, 5 AD3d 339, 340 [2004]; Patterson v Greater N.Y. Corp. of Seventh Day Adventists, 284 AD2d 382, 383 [2001]).

"The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the Supreme Court" (Lazar, Sanders, Thaler & Assoc., LLP v. Lazar, 131 A.D.3d at 1133, 16 N.Y.S.3d 326 ; see Wolf v. Flowers, 122 A.D.3d 728, 728, 996 N.Y.S.2d 169; Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 A.D.3d at 209, 959 N.Y.S.2d 74). Even so, the Appellate Division " ‘is vested with its own discretion and corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse’ " (Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 A.D.3d at 209, 959 N.Y.S.2d 74, quoting Those Certain Underwriters at Lloyds, London v. Occidental Gems, Inc., 11 N.Y.3d 843, 845, 873 N.Y.S.2d 239, 901 N.E.2d 732 ). In determining the appropriate sanction to impose, we are guided by CPLR 3126, which permits courts to, among other things, "order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order" (CPLR 3126[1]), issue a preclusion order (see CPLR 3126[2]), or strike a pleading (see CPLR 3126[3]). The striking of a pleading is a drastic remedy that may only be warranted upon a clear showing that the failure to comply with discovery demands or court-ordered discovery was willful and contumacious (see Lazar, Sanders, Thaler & Assoc. Inc. v. Lazar, 131 A.D.3d at 1133, 16 N.Y.S.3d 326; Brandenburg v. County v. Rockland Sewer Dist. # 1, State of N.Y., 127 A.D.3d at 681, 6 N.Y.S.3d 570;

[48 N.Y.S.3d 156]

Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 A.D.3d at 210, 959 N.Y.S.2d 74). Although not expressly set forth as a sanction under CPLR 3126, we have held that the imposition of a monetary sanction under CPLR 3126 may be appropriate to compensate counsel or a party for the time expended and costs incurred in connection with an offending party's failure to fully and timely comply with court-ordered disclosure (see Knoch v. City of New York, 109 A.D.3d 459, 970 N.Y.S.2d 270; Friedman, Harfenist, Langer & Kraut v. Rosenthal, 79 A.D.3d 798, 801, 914 N.Y.S.2d 196; O'Neill v. Ho, 28 A.D.3d 626, 627, 814 N.Y.S.2d 202). Here, contrary to the Supreme Court's determination, we find that the imposition of monetary sanctions was insufficient to punish the defendants and their counsel for their willful and contumacious conduct in failing to timely and fully respond to discovery demands and court orders. Accordingly, the court should have granted that branch of the plaintiff's motion which was to strike the defendants' answers.

Plaintiffs' discovery abuses warrant the imposition of a $10,000 monetary sanction pursuant to CPLR 3126.

A monetary sanction, including costs and counsel fees, may be imposed under the statutory language in CPLR 3126, which permits the court to "make such orders with regard to [a] failure or refusal [to disclose information which the court finds ought to have been disclosed] as are just " (emphasis added) (see Connors, Practice Commentaries, McKinney's Cons Law of NY, Book 7B, CPLR 3126:1, at 475–476; Lucas v. Stam, 147 A.D.3d 921, 926, 48 N.Y.S.3d 150 [2d Dept. 2017] ["the imposition of a monetary sanction under CPLR 3126 may be appropriate to compensate counsel or a party for the time expended and costs incurred in connection with an offending party's failure to fully and timely comply with court-ordered disclosure"]). Sanctions under CPLR 3126, including monetary sanctions, do "not depend in any measure on Rule 130 [22 NYCRR Part 130] and, therefore are not subject to its restraints" (Romero v. New York City Hous. Auth., 2005 N.Y.L.J. LEXIS 1173, *8 [Sup. Court, Bronx County 2005]).

Although the nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the Supreme Court, this Court "is vested with its own discretion and corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse" (Those Certain Underwriters at Lloyds, London v. Occidental Gems, Inc., 11 N.Y.3d 843, 845, 873 N.Y.S.2d 239, 901 N.E.2d 732 [2008]; Lucas v. Stam, 147 A.D.3d at 925–926, 48 N.Y.S.3d 150. Here, a monetary sanction of $10,000 is warranted because plaintiffs, without seeking a protective order, intentionally did not produce documents and did not properly respond to a notice to admit based on an unfounded assertion that they feared defendants would make the documents public (see Jackson v. OpenCommunications Omnimedia, LLC, 147 A.D.3d 709, 49 N.Y.S.3d 389 [1st Dept. 2017]; Arbor Realty Funding, LLC v. Herrick, Feinstein LLP, 140 A.D.3d 607, 610, 36 N.Y.S.3d 2 [1st Dept. 2016]; Dean v. Usine Campagna, 44 A.D.3d 603, 605, 845 N.Y.S.2d 62 [2d Dept. 2007]).