Three Discovery Violation Strikes: You’re Out

In Husovic v. Structure Tone, Inc., 2019 NY Slip Op 02954 (App. Div. April 18, 2019), the court upheld discovery sanctions against a defendant who failed to comply with court orders.

From the decision:

If any party . . . refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” the court may, inter alia, make 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” (CPLR 3126[1]; Longo v Armor El. Co., 307 AD2d 848, 849 [1st Dept 2003]). A determination of sanctions pursuant to CPLR 3216 lies in the trial court’s discretion and should not be set aside absent a clear abuse of discretion (see Kihl v Pfeffer, 94 NY2d 118, 122 [1999]; De Socio v 136 E. 56th St. Owners, Inc., 74 AD3d 606, 607 [1st Dept 2010][citing Arts4All, Ltd. v Hancock, 54 AD3d 286, 286 [1st Dept 2008], affd 12 NY3d 846 [2009], cert denied 559 US 905 [2010]).

Here, Supreme Court issued three separate discovery orders directing defendant to produce documents, including one order that expressly laid out what documents needed to be provided and warned that failure to comply may result in sanctions. Defendant failed to demonstrate a reasonable excuse for its failure to comply (see Fish & Richardson, P.C. v Schindler, 75 AD3d 219, 221-222 [1st Dept 2010]). Accordingly, Supreme Court providently exercised its discretion in resolving limited factual issues in favor of plaintiff

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