Tung Wa Ma v New York City Tr. Auth., 2014 NY Slip Op 00497 [2nd Dept. 2014]
At a court appearance on October 10, 2012, the plaintiffs made an oral application pursuant to CPLR 3126 to preclude Lamboy from testifying at trial. The plaintiffs argued that, despite prior requests and orders, the MTA defendants had failed to provide the requested documents. The MTA defendants opposed the application, arguing, inter alia, that they had been unsuccessfully searching for the documents and that, if given the opportunity, they would provide affidavits attesting to the efforts they had made to find them. The Supreme Court granted the plaintiffs' application without giving the MTA defendants an opportunity to show the efforts they had made to find the requested documents.
Before a court may impose the drastic remedy of preclusion for disclosure violations, it must determine that the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious (see Aha Sales, Inc. v Creative Bath Prods., Inc., 110 AD3d 1020). Here, the court erred in granting the plaintiffs' application pursuant to CPLR 3126 to preclude Lamboy from testifying at trial without first affording the MTA defendants an opportunity to demonstrate their attempts to comply with the prior order (see Xand Corp. v Reliable Sys. Alternatives Corp., 35 AD3d 849, 850; cf. Mitskevitch v City of New York, 78 AD3d 1137, 1138; Kelleher v Mt. Kisco Med. Group, 264 AD2d 760, 761; Postel v New York Univ. Hosp., 262 AD2d 40, 42).
Bold is mine.