CPLR 3126

Crupi v Rashid, 2018 NY Slip Op 00406 [2d 2018]

The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court's discretion (see Dimoulas v Roca, 120 AD3d 1293, 1295; Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 739). The general rule is that the court will impose a sanction commensurate with the particular disobedience it is designed to punish and go no further than that (see Zakhidov v Boulevard Tenants Corp., 96 AD3d at 739; Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C3126:8). Before a court invokes the drastic remedy of striking a pleading, or even of precluding all evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious (see Zakhidov v Boulevard Tenants Corp., 96 AD3d at 739; Cianciolo v Trism Specialized Carriers, 274 AD2d 369, 370).

Here, on this record, there is no evidence demonstrating either that the incarcerated defendant, Syed Rashid, willfully and contumaciously failed to be deposed, or that his attorney failed to secure his deposition (see Brodsky v Amber Ct. Assisted Living, LLC, 147 AD3d 810; Zakhidov v Boulevard Tenants Corp., 96 AD3d at 738; Patel v DeLeon, 43 AD3d 432, 432-433; Cianciolo v Trism Specialized Carriers, 274 AD2d at 370).