On discovery

Lyoussi v Etufugh, 2020 NY Slip Op 06956 [1st Dept. 2020]

The motion court providently exercised its discretion in declining to strike the complaint or preclude plaintiff from offering evidence for failure to comply with discovery orders. The court was not beholden to a prior order that warned that failure to comply would be construed as willful and contumacious but was not a conditional order that would have obviated the need for a determination of willfulness (see Board of Mgrs. of the 129 Lafayette St. Condominium v 129 Lafayette St., LLC, 103 AD3d 511 [1st Dept 2013]). Further, the history of this litigation establishes that any non-compliance on plaintiff’s part was not willful, contumacious or in bad faith (see Henderson-Jones v City of New York, 87 AD3d 498, 504 [1st Dept 2011]). Plaintiff complied with the court’s discovery orders more often than not by providing timely responses that generally evidenced a good-faith effort to address outstanding discovery meaningfully (see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]).

Roel v Hsu, 185 AD3d 1077 [2d Dept. 2020]

Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court (see Williams v Suttle, 168 AD3d 792, 793 [2019]; Morales v Zherka, 140 AD3d 836, 836-837 [2016]; Isaacs v Isaacs, 71 AD3d 951, 952 [2010]). The Supreme Court providently exercised its discretion in denying the defendants’ motion without prejudice. The record reveals that the plaintiff substantially complied with the court’s orders to respond to the defendants’ second set of interrogatories by providing separate full answers and objections with reasonable particularity to each of the 50 questions (see CPLR 3133 [a], [b]; Pesce v Fernandez, 144 AD3d 653, 654 [2016]; Palmieri v Piano Exch., Inc., 124 AD3d 611, 612 [2015]; Delarosa v Besser Co., 86 AD3d 588, 589 [2011]). The defendants’ dissatisfaction with the answers and objections proffered by the plaintiff was insufficient to establish that the plaintiff willfully and contumaciously failed to comply with court-ordered disclosure (see Automatic Mail Serv. v Xerox Corp., 156 AD2d 623, 624 [1989]; E.K. Constr. Co. v Town of N. Hempstead, 144 AD2d 427 [1988]; Miller v Duffy, 126 AD2d 527, 528 [1987]).

Board of Mgrs. of 141 Fifth Ave. Condominium v 141 Acquisition Assoc. LLC, 186 AD3d 1147 [1st Dept.  2020]

The motion court providently exercised its discretion in denying unfettered disclosure of the confidential settlement agreement between plaintiff Board of Managers of 141 Fifth Avenue Condominium and the sponsor of the building, defendant 141 Acquisition Associates LLC (the sponsor), and instead permitting disclosure of the portions of the agreement which the court determined were relevant following in camera review (Mahoney v Turner Constr. Co., 61 AD3d 101, 104-106 [1st Dept 2009]). Upon review, the motion court providently determined that the portions that were relevant to appellants’ claims and defenses were (1) the scope of the assignment of the sponsor’s claims to plaintiff and (2) whether the agreement contained a cooperation provision. As for appellants’ arguments urging disclosure in order to show bias of certain witnesses, appellants failed to connect such bare allegations to anything contained in the settlement agreement that would be “material and necessary” to the litigation of any party’s liability or damages (Matter of New York County Data Entry Worker Prod. Liab. Litig., 222 AD2d 381, 382 [1st Dept 1995]). Without more, “any possible use of [the agreement] for purpose of impeachment . . . is speculative in the extreme” (id. [internal quotation marks omitted]).

Beach v Touradji Capital Mgt., LP, 179 AD3d 474 [1st Dept. 2020]

Pursuant to CPLR 3126, if a 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 make such orders with regard to the failure or refusal as are just.” Although “[i]t is within the trial court’s discretion to determine the nature and degree of the penalty, . . . [t]he sanction should be commensurate with the particular disobedience it is designed to punish, and go no further than that” (Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., 22 NY3d 877, 880 [2013] [internal quotation marks omitted]). Further, “the drastic remedy of striking a party’s pleading . . . for failure to comply with a discovery order . . . is appropriate only where [it is] conclusively demonstrate[d] that the non-disclosure was willful, contumacious or due to bad faith” (Henderson-Jones v City of New York, 87 AD3d 498, 504 [1st Dept 2011] [internal quotation marks omitted]).

Although the court here did not strike a pleading, its ruling could fairly be viewed as having done so, since the precluded evidence was critical to the fiduciary duty claims. Moreover, the court’s drastic sanctions were disproportionate to the alleged discovery malfeasance. It is unclear why a short continuance to give plaintiffs time to review the newly-produced documents would not have been a viable option, or why further curative instructions would not have sufficed. The record as a whole does not support a finding of willfulness or bad faith so as to justify the severe sanctions imposed (see Corrigan v New York City Tr. Auth., 144 AD3d 495, 496 [1st Dept 2016] [because the discovery failures were not wilful or contumacious or in bad faith, the court’s drastic sanction of striking the answer and precluding evidence at trial was unwarranted]). No basis exists to indicate that this was anything other than a disagreement over the scope of discovery. Indeed, the court at trial stated that the alleged discovery omissions “appear[ ] not to have been in bad faith.”

Nor is there support in the record for plaintiffs’ current assertion that appellants refused to obey a discovery order issued at the pretrial conference. Although a transcript of the pretrial conference does not exist, the court expressly acknowledged at trial that it did not issue a discovery order, but merely “asked” appellants to produce the documents. The court further observed that when appellants were subsequently “order[ed]” to produce the material, appellants complied. Likewise, at trial, counsel for plaintiffs described the court as merely having directed the parties to “work it out.”

Asprou v Hellenic Orthodox Community of Astoria, 185 AD3d 638 [2d Dept. 2020]

For purposes of depositions, a corporate entity has the right to designate, in the first instance, the employee who shall be examined (see Conte v County of Nassau, 87 AD3d 559, 560 [2011]; Giordano v New Rochelle Mun. Hous. Auth., 84 AD3d 729, 731 [2011]; Nunez v Chase Manhattan Bank, 71 AD3d 967, 968 [2010]). A party “seeking additional depositions has the burden of demonstrating ‘(1) that the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case’ ” (Gomez v State of New York, 106 AD3d 870, 872 [2013], quoting Zollner v City of New York, 204 AD2d 626, 627 [1994]; see Conte v County of Nassau, 87 AD3d at 560; Giordano v New Rochelle Mun. Hous. Auth., 84 AD3d at 731).

We agree with the Supreme Court’s determination denying that branch of the plaintiff’s motion which was to compel the defendants to produce the two additional named witnesses for depositions. The plaintiff failed to demonstrate that the defendants’ representative who had already been deposed had insufficient knowledge or was otherwise inadequate as a witness (see Walker v City of New York, 140 AD3d 739 [2016]; Thristino v County of Suffolk, 78 AD3d 927 [2010]; Douglas v New York City Tr. Auth., 48 AD3d 615 [2008]).

We also agree with the Supreme Court’s determination denying that branch of the plaintiff’s motion which was to compel the defendants to respond to his supplemental combined discovery demands. CPLR 3101 (a) requires, in pertinent part, “full disclosure of all matter material and necessary in the prosecution or defense of an action.” However, “[a] party is not entitled to unlimited, uncontrolled, unfettered disclosure” (Geffner v Mercy Med. Ctr., 83 AD3d 998, 998 [2011]; see Kiernan v Booth Mem. Med. Ctr., 175 AD3d 1396, 1398 [2019]; Jordan v City of New York, 137 AD3d 1084 [2016]).

Disclosure demands may be palpably improper where they seek irrelevant information, are overbroad and burdensome, or fail to specify with reasonable particularity many of the documents demanded (see Kiernan v Booth Mem. Med. Ctr., 175 AD3d at 1397-1398; Kayantas v Restaurant Depot, LLC, 173 AD3d 718 [2019]). “Where the discovery demands are overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it” (Pascual v Rustic Woods Homeowners Assn., Inc., 173 AD3d 757, 758 [2019]). Here, the discovery demands at issue were abandoned or palpably improper in that they sought irrelevant information or were overbroad (see id. at 758; Shaw v Bluepers Family Billiards, 94 AD3d 858, 860 [2012]; Geffner v Mercy Med. Ctr., 83 AD3d at 998).

Vays v Luntz, 179 AD3d 74 [2d Dept. 2020] (PC orders); Marino v Armogan, 179 AD3d 664 [2d Dept. 2020] and Vlahos v Robert, 183 AD3d 779 [2d Dept. 2020] (preclusion of a necessary part of prima facie case)

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