So you entered into a Preliminary Conference and a Compliance Conference Order with your adversary whereby the parties have to exchange discovery by dates certain. The purpose of these orders is to save parties a significant amount of time and money and to move along litigation. However, when a party repeatedly fails to comply with the orders, one may seek an order of preclusion and to strike the other party’s pleading, right? CPLR 3126(3) provides the aggrieved litigator with just the tool: motion to strike the other side’s pleading. Are they successful? Sometimes!
Recently, in PAL Environmental Services, Inc., v. LJC Dismantling Corp., the Justice Marguerite Grays denied Plaintiff’s motion to strike Defendant’s answer based on Defendant’s repeated failure to provide complete and sufficient discovery responses. There, Plaintiff and Defendant entered into a Preliminary Conference Order, Compliance Conference Order, and a stipulation directing the production of certain material documentation pertaining to the breach of contract action. Although the Defendant was delinquent in producing the requested discovery responses pursuant to the discovery orders, it finally produced documents in accordance with the dates set forth by the stipulation. Nevertheless, Plaintiff deemed these responses “incomplete.” As such, Plaintiff moved pursuant to CPLR 3126(3) to strike the Defendant’s answer for failure to comply with the terms of the stipulation. Although the Supreme Court denied the motion, Plaintiff successfully moved for leave to renew, granting Plaintiff’s motion to strike the delinquent party’s answer. Not surprisingly, the Queens County Supreme Court held that Defendant’s repeated failure to comply with the terms of stipulation constituted “willful and contumacious” conduct.
However, upon Defendant’s appeal of the decision, the Second Department reversed, finding that public policy favors the “resolution of actions on the merits whenever possible” and that striking a pleading is not warranted absent a showing that the failure to comply with discovery is “willful and contumacious.” Thus, the court resuscitated Defendant’s answer, breathing life back to the case, since there was very little evidence demonstrating that the failures to respond to discovery were “willful, deliberate, or contumacious.” The court relied on another recent Second Department case, Henry v Datson, which held that the decision whether to strike a pleading for failure to comply with “court-ordered disclosures lies within the sound discretion of the trial court.”
“Well”, you say, “has the Appellate Division ever upheld the striking of a pleading under CPLR 3126(3)?” You bet. Indeed, in Studer v. Newpointe Estates Condominium, the Second Department upheld the strike where the court found repeated delays in complying with the demands and the court’s schedule, coupled with the inadequacy of the responses and the lack of an adequate excuse for the delays, gave sufficient evidence of willful and contumacious conduct that Supreme Court was well within its discretion to strike the answer.
Takeaway: Not all “repeated discovery failures” lead to the striking of a pleading — something considered a drastic remedy. The failures must be shown to be “willful and contumacious,” meaning, more than mere negligence. Repeated negligence does not seem to meet the criterion to strike a pleading under CPLR 3126(3).