3126 commensurate…and no further

Han v New York City Tr. Auth., 2019 NY Slip Op 00975 [1st Dept. 2019]

CPLR 3126 provides that 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.” It is within the motion court’s discretion to determine the nature and degree of the penalty (see Kihl v Pfeffer, 94 NY2d 118, 122 [1999]), and the sanction will remain undisturbed unless there has been a clear abuse of discretion (see Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843, 845 [2008]). The sanction should be “commensurate with the particular disobedience it is designed to punish, and go no further than that” (Patrick M. Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3126:8 at 497; see also Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., 22 NY3d 877, 880 [2013]).

Social Media

Vasquez-Santos v Mathew, 2019 NY Slip Op 00541 [1st Dept. 2019]

Private social media information can be discoverable to the extent it “contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims” (Patterson v Turner Const. Co., 88 AD3d 617, 618 [1st Dept 2011]). Here, plaintiff, who at one time was a semi-professional basketball player, claims that he has become disabled as the result of the automobile accident at issue, such that he can no longer play basketball. Although plaintiff testified that pictures depicting him playing basketball, which were posted on social media after the accident, were in games played before the accident, defendant is entitled to discovery to rebut such claims and defend against plaintiff’s claims of injury. That plaintiff did not take the pictures himself is of no import. He was “tagged,” thus allowing him access to them, and others were sent to his phone. Plaintiff’s response to prior court orders, which consisted of a HIPAA authorization refused by Facebook, some obviously immaterial postings, and a vague affidavit claiming to no longer have the photographs, did not comply with his discovery obligations. The access to plaintiff’s accounts and devices, however, is appropriately limited in time, i.e., only those items posted or sent after the accident, and in subject matter, i.e., those items discussing or showing defendant engaging in basketball or other similar physical activities (see Forman v Henkin, 30 NY3d 656, 665 [2018]; see also Abdur-Rahman v Pollari, 107 AD3d 452, 454 [1st Dept 2013]).

Discovery

Harris v Kay, 2019 NY Slip Op 00044 [1st Dept. 2019]

The court did not abuse its discretion in striking the complaint, given plaintiff’s repeated, willful and contumacious refusals to provide discovery and to comply with court’s orders over an approximately eight-year period (see McHugh v City of New York, 150 AD3d 561, 562 [1st Dept 2017]; Fish & Richardson, P.C. v Schindler, 75 AD3d 219, 221-222 [1st Dept 2010]; see generally Merrill Lynch, Pierce, Fenner Smith, Inc. v Global Strat Inc., 22 NY3d 877, 880 [2013]). Even if plaintiff’s response to defendants’ first set of interrogatories could be considered “timely” pursuant to the court’s August 28, 2013 order, despite that the interrogatories were served more than six years prior, the response certainly does not “evince[] a good-faith effort to address the requests meaningfully” (Kihl v Pfeffer, 94 NY2d 118, 123 [1999]).

Brown v Montefiore Med. Ctr., 2019 NY Slip Op 00226 [1st Dept. 2019]

The court’s September 28, 2015 order was predicated on the motion and cross motion by the defendants, the underlying issues of which had already been fully resolved by the parties’ so-ordered stipulation, dated August 4, 2015, issued after a preliminary conference. At the time of the court’s September 28th conditional preclusion order, there was no motion pending, and no request for any relief from the defendants. Given the circumstances, the court should have granted plaintiff’s motion to vacate the judgment. However, this in no way condones plaintiff’s counsel’s clearly dilatory behavior, which, based on the pattern evinced by the record, was willful.

The bold is mine.

Hopkins v City of New York, 2019 NY Slip Op 00388 [1st Dept. 2019]

The parties suspended scheduling of the deposition of the City’s witness on January 14, 2014 when plaintiff withdrew its request for an EBT while other discovery disputes were resolved. Thus, the court orders prior to January 14, 2014 do not support the imposition of sanctions. We agree with Supreme Court that the City’s noncompliance with subsequent disclosure orders did not give rise to an inference of willful and contumacious conduct. Given that there does not appear to be an actual prejudice to plaintiff, the court was within its discretion to provide defendant with one additional opportunity to submit to depositions before striking its answer (Figueroa v City of New York, 129 AD3d 596, 597 [1st Dept 2015]).

We further note that at the time this motion was pending, the City offered to produce the witness at issue.

Williams v Suttle, 2019 NY Slip Op 00163 [2d Dept. 2019]

The drastic remedy of dismissing a complaint for a plaintiff’s failure to comply with court-ordered discovery is warranted where a party’s conduct is shown to be willful and contumacious (see Harris v City of New York, 117 AD3d 790Almonte v Pichardo, 105 AD3d 687, 688; Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 210). The willful and contumacious character of a party’s conduct can be inferred from either (1) the repeated failure to respond to demands or comply with court-ordered discovery, without a reasonable excuse for these failures, or (2) the failure to comply with court-ordered discovery over an extended period of time (see Candela v Kantor, 154 AD3d 733, 734; Pesce v Fernandez, 144 AD3d 653, 654; Gutman v Cabrera, 121 AD3d 1042, 1043; Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 210).

Here, the willful and contumacious character of the plaintiffs’ actions can be inferred from their repeated failures to comply with the defendant’s notices to appear for depositions and the deadlines set forth in the compliance conference orders over an extended period of time (see Wolf v Flowers, 122 AD3d 728, 729; Matone v Sycamore Realty Corp., 87 AD3d 1113, 1114). Furthermore, the plaintiffs failed to provide an adequate explanation for their repeated failures to comply with court-ordered discovery. While the plaintiffs established that the medical condition of Lawrey, who is a resident of the State of Georgia, required her to avoid travel and that her deposition could be conducted via live video conferencing (see Duncan v 605 Third Ave., LLC, 49 AD3d 494, 496), they did not provide any explanation for their failure to produce Williams, a resident of Westchester County, for a deposition.

Contrary to the plaintiffs’ contention, the defendant, who had first noticed depositions after serving her answer, had priority of depositions (see CPLR 3106[a]; Scalone v Phelps Mem. Hosp. Ctr., 184 AD2d 65, 76-77), and the filing of an amended complaint did not automatically stay discovery.

In any event, when the plaintiffs failed to appear for depositions within the time specified in the conditional order of dismissal, the conditional order became absolute (see Corex-SPA v Janel Group of N.Y., Inc., 156 AD3d at 602; Wei Hong Hu v Sadiqi, 83 AD3d 820, 821; Matter of Denton v City of Mount Vernon, 30 AD3d 600). To be relieved of the adverse impact of the conditional order directing dismissal of the complaint, the plaintiffs were required to demonstrate a reasonable excuse for their failure to appear for depositions and that their cause of action was potentially meritorious (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 80; Kirkland v Fayne, 78 AD3d 660, 661; Lerner v Ayervais, 16 AD3d 382Smith v Lefrak Org., 96 AD2d 859, affd 60 NY2d 828). The plaintiffs failed to demonstrate a reasonable excuse for their failure to appear for depositions on or before February 29, 2016.

3126

Shohat v Suky, 2018 NY Slip Op 08548 [1st Dept. 2018]

Defendants engaged in willful and contumacious conduct warranting the penalty of striking their answer (seeCPLR 3126; McHugh v City of New York, 150 AD3d 561 [1st Dept 2017]). They failed to comply with several court orders directing compliance with outstanding discovery requests by dates certain. The discovery responses they served only after plaintiff moved to strike consisted almost entirely of objections.

Spivey v City of New York, 2018 NY Slip Op 08557 [1st Dept. 2018]

The default on which the dismissal was based — plaintiff’s failure to respond to a motion to dismiss under CPLR 3126, allegedly due to his counsel’s mis-calendaring of the return date — was not an isolated mistake but part of a pervasive pattern of neglect in prosecuting this action evident from the record, including his persistent failure to satisfy discovery obligations for about a year and a half. As part of a pattern of “intentional[] and repeated[] fail[ure] to attend to [his obligations]” (Imovegreen, LLC v Frantic, LLC, 139 AD3d 539, 540 [1st Dept 2016]), the law-office failure leading to the default was not excusable.

Suarez v Dameco Indus., Inc., 2018 NY Slip Op 08576 [1st Dept. 2018]

The motion court providently exercised its discretion in granting plaintiff’s motion to strike Dameco’s answer for willful failure to comply with discovery orders (see CPLR 3126). Dameco’s counsel offered a barebones affirmation disclosing that Dameco was now defunct and claiming that counsel’s attempts to contact unnamed former officers of Dameco through an investigative service had been unsuccessful, which was insufficient to establish good-faith efforts to comply (see Cavota v Perini Corp., 31 AD3d 362, 364 [2d Dept 2006]; Hutson v Allante Carting Corp., 228 AD2d 303 [1st Dept 1996]; see also Reidel v Ryder TRS, Inc., 13 AD3d 170, 171 [1st Dept 2004]; compare Lee v 13th St. Entertainment LLC, 161 AD3d 631 [1st Dept 2018]). Although Dameco was apparently still in business when the action was commenced, defense counsel provided no explanation for Dameco’s failure to preserve any records relating to its repair, service, and maintenance of the elevator that allegedly caused plaintiff’s injuries, including inspection records that Dameco was statutorily required to prepare. In light of plaintiff’s showing of willful failure to comply, and since the complete absence of records impedes plaintiff’s ability to prove his case, the sanction of striking Dameco’s answer was appropriate under the circumstances.

Aiken v Liotta, 2018 NY Slip Op 08621 [2d Dept. 2018]

We agree with the Supreme Court’s denial of the defendant’s motion to enforce certain orders of preclusion against the plaintiff Rosemary Wiltshire pursuant to CPLR 3126 and, thereupon, for summary judgment dismissing the complaint insofar as asserted by that plaintiff. Despite Wiltshire’s delays, she substantially complied with the relevant discovery demands and orders, and the defendant failed to demonstrate that the delays were the product of willful and [*2]contumacious conduct (see Brannigan v Christie Overhead Door, 144 AD3d 959, 960; McDermott v Bahnatka, 83 AD3d 1014, 1015; LOP Dev., LLC v ZHL Group, Inc., 78 AD3d 1020, 1020; Jenkins v Proto Prop. Servs., LLC, 54 AD3d 726Zouev v City of New York, 32 AD3d 850, 851; Passarelli v National Bank of Westchester, 81 AD2d 635, 636).

Conditional Order 3126

McIntosh v New York City Partnership Dev. Fund Co., Inc., 2018 NY Slip Op 07303 [2d Dept. 2018]

Contrary to the plaintiffs’ contention, under the language of the conditional order of preclusion, the plaintiffs’ failure to respond to outstanding discovery demands from even a single other party would result in the plaintiffs being precluded from presenting any evidence of damages at trial. The plaintiffs did not meet their burden to avoid the adverse effect of the conditional order of preclusion, as they did not “demonstrate a reasonable excuse for the failure to comply with the order and the existence of a potentially meritorious” cause of action (Naiman v Fair Trade Acquisition Corp., 152 AD3d at 780).

3126 [the records did not exist]

Tanriverdi v United Skates of Am., Inc., 2018 NY Slip Op 05885 [2nd Dept 2018]

As a result of the plaintiffs' failure to disclose salon appointment records dating back to February 2011, the conditional order became absolute (see Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830; Mars v Sharp, 90 AD3d 865, 865-866; Zouev v City of New York, 32 AD3d 850, 850). To be relieved of the adverse impact of the conditional order, the plaintiffs were required to demonstrate a reasonable excuse and a potentially meritorious cause of action (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 79-83; Corex-SPA v Janel Group of N.Y., Inc., 156 AD3d 599, 602; Zouev v City of New York, 32 AD3d at 850-851). Here, in response to the defendant's motion, the plaintiffs submitted evidence indicating that the conditional order of dismissal directed them to produce appointment records that did not exist, thereby demonstrating a reasonable excuse for their failure to produce the records in question (see Smith v County of Nassau, 138 AD3d 726, 728; Gottfried v Maizel, 68 AD3d 1060, 1061). The plaintiffs additionally demonstrated a potentially meritorious cause of action (see Miskanic v Roller Jam USA, Inc., 71 AD3d 1102, 1102-1103). Consequently, the Supreme Court improvidently exercised its discretion in granting the defendant's motion to dismiss the complaint.

Contrary to the defendant's contention, CPLR 3126 did not otherwise justify the Supreme Court's determination to dismiss the complaint. "Actions should be resolved on their merits whenever possible, and the drastic remedy of striking a pleading should not be employed without a clear showing that the failure to comply with court-ordered discovery was willful and contumacious" (Nunez v Laidlaw, 150 AD3d 1124, 1125; see Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 739). The defendant failed to make a clear showing that the plaintiffs' conduct was willful and contumacious, since, among other things, the plaintiffs complied with many discovery demands and substantially complied with the court's disclosure orders once the parties resumed discovery after failing to reach a settlement agreement. The plaintiffs' conduct did not warrant dismissal (see Nunez v Laidlaw, 150 AD3d at 1126; McDermott v Bahnatka, 83 AD3d 1014, 1015; LOP Dev., LLC v ZHL Group, Inc., 78 AD3d 1020, 1020).

3126

Chowdhury v Hudson Val. Limousine Serv., LLC, 2018 NY Slip Op 04526 [2d Dept 2018]

"The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court's discretion" (Crupi v Rashid, 157 AD3d 858, 859; see Dimoulas v Roca, 120 AD3d 1293, 1295; Arpino v F.J.F. & Sons Elec., Co., Inc., 102 AD3d 201, 210; Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 738). "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" (Crupi v Rashid, 157 AD3d at 859; 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). This Court is vested with corresponding power to substitute its own discretion for that of the motion court, even in the absence of abuse (see Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843, 845; Household Fin. Realty Corp. of NY v Cioppa, 153 AD3d 908, 910; Lewis v John, 87 AD3d 564, 565).

In light of Koonin's failure to comply with multiple court orders and so-ordered stipulations directing him to appear for the EBT, the Supreme Court properly concluded that Koonin engaged in willful and contumacious conduct (see Riccuiti v Consumer Prod. Servs., LLC, 71 AD3d 754Carabello v Luna, 49 AD3d 679, 680). However, under the circumstances, it was an improvident exercise of discretion to grant those branches of the motion and cross motion which were to strike Koonin's answer in light of the fact that the court also granted those branches of the motion and cross motion which were to preclude Koonin from offering any evidence at the time of trial (see e.g. Hasan v 18-24 Luquer St. Realty, LLC, 144 AD3d 631, 633; Piatek v Oak Dr. Enters., Inc., 129 AD3d 811, 812).

Cannon v 111 Fulton St. Condominium, Inc., 2018 NY Slip Op 04523 [2d Dept 2018]

Here, the so-ordered stipulation did not set a time, date, or place for the plaintiff's deposition, instead stating merely that the plaintiff's deposition was to be held "on or before" March 16, 2015, "at a time and location to be agreed upon." In light of this, the defendants' minimal assertion that the plaintiff failed to appear, which relied on the hearsay assertion of an unnamed employee of defense counsel, was insufficient to demonstrate that the plaintiff willfully and contumaciously violated the so-ordered stipulation (see Yong Soon Oh v Hua Jin, 124 AD3d 639, 641; Deer Park Assoc. v Town of Babylon, 121 AD3d at 740; Vaccaro v Weinstein, 117 AD3d 1033, 1034; Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923). Similarly, the defendants did not allege in [*3]their motion that the plaintiff had failed to provide the outstanding written discovery that was included in the so-ordered stipulation. Therefore, since the defendants failed to demonstrate that the plaintiff knew when and where to appear for her deposition, there was no evidence of ongoing willful or contumacious conduct (see PNC Bank, N.A. v Campbell, 142 AD3d 1148, 1149). Accordingly, we disagree with the Supreme Court's determination to grant that branch of the defendant's motion which was to preclude the plaintiff from offering evidence at trial.

Overbroad Discovery

Doe v Bronx Preparatory Charter Sch., 2018 NY Slip Op 02898 [1st Dept. 2018]

The court providently exercised its discretion in declining to impose sanctions on plaintiffs or to compel further disclosure of the infant plaintiff's social media and cell phone history, since defendant failed to submit papers necessary to determine whether plaintiffs had not complied with a prior discovery order (see Nyadzi v Ki Chul Lee, 129 AD3d 645 [1st Dept 2015]; Ventura v Ozone Park Holding Corp., 84 AD3d 516, 517—518 [1st Dept 2011]). Further, there was no showing that plaintiffs wilfully failed to comply with any discovery order, since they provided access to the infant plaintiff's social media accounts and cell phone records for a period of two months before the date on which she was allegedly attacked on defendant's premises to the present, which was a reasonable period of time. Defendant's demands for access to social media accounts for five years prior to the incident, and to cell phone records for two years prior to the incident, were overbroad and not reasonably tailored to obtain discovery relevant to the issues in the case (see Forman v Henkin, 30 NY3d 656, 665 [2018]).

Court is not a weedwhacker

Sears Roebuck & Co. v Vornado Realty Trust, 2018 NY Slip Op 01421 [1st Dept 2018]

Nothing in the record suggests that defendants acted willfully, contumaciously, or in bad faith, warranting the drastic remedy of striking the answer (see Henderson—Jones v City of New York, 87 AD3d 498, 504 [1st Dept 2011]). Indeed, defendants produced responsive documents to requests that were the subject of plaintiff's motion, as shown by their affirmation in support of the first cross motion, of which this Court takes judicial notice (see Yuppie Puppy Pet Prods., Inc. v Street Smart Realty, LLC, 77 AD3d 197, 202 [1st Dept 2010]). Plaintiff is not entitled to confidential information about the interrelationship and ownership of defendants. Moreover, defendants submitted responses to plaintiff's 86 interrogatories, and, as the majority of their responses to the interrogatories in dispute were proper, the court was not obligated to "prune" the interrogatories for plaintiff (see Lerner v 300 W. 17th St. Hous. Dev. Fund Corp., 232 AD2d 249, 250 [1st Dept 1996]).

A desperate attempt to avoid discovery [CPLR 3126, 3103]

Compare with Donohue v Fokas, 112 AD3d 665 [2d Dept 2014] (""[T]he payment or rejection of claims is a part of the regular business of an insurance company. Consequently, reports which aid it in the process of deciding which of the two indicated actions to pursue are made in the regular course of its business. Reports prepared by insurance investigators, adjusters, or attorneys before the decision is made to pay or reject a claim are thus not privileged and are discoverable, even when those reports are mixed/multi-purpose reports, motivated in part by the potential for litigation with the insured") and  National Union Fire Ins. Co. of Pittsburgh, Pa. v TransCanada Energy USA, Inc., 114 AD3d 595 [1st Dept. 2014] ("Documents prepared in the ordinary course of an insurer's investigation of whether to pay or deny a claim are not privileged, and do not become so merely because [the] investigation was conducted by an attorney") (internal quotes omitted).

Prior Appellate history: Ural v Encompass Ins. Co. of Am., 97 AD3d 562 [2d Dept 2012]

With respect to the parties' discovery issues, CPLR 3101 (a) broadly mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action." This provision is liberally interpreted in favor of disclosure (see Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954 [1998]; Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; Matter of Skolinsky, 70 AD3d 845 [2010]; Riverside Capital Advisors v First Secured Capital Corp., 292 AD2d 515 [2002]). However, the discovery sought must be relevant to the issues at bar, with the test employed being "usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d at 406). Regarding an entire set of discovery demands which are "palpably improper in that they are overbroad, lack specificity, or seek irrelevant or confidential information, the appropriate remedy is to vacate the entire demand rather than to prune it" (Bell v Cobble Hill Health Ctr., Inc., 22 AD3d 620, 621 [2005]). "The burden of serving a proper demand is upon counsel, and it is not for the courts to correct a palpably bad one" (id. at 621 [internal quotation marks omitted]).

Here, the plaintiff's discovery demands included production of Encompass's entire claim file for the subject water damage. The plaintiff asserts that Encompass only produced part of the claim file. In response, Encompass asserts that it withheld only those parts of the claim file that were produced in anticipation of litigation and thus were protected by work product privilege (see Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370 [2008]). However, the party asserting the privilege that material sought through discovery was prepared exclusively in anticipation of litigation or constitutes attorney work product bears the burden of demonstrating that the material it seeks to withhold is immune from discovery (see Koump v Smith, 25 NY2d 287, 294 [1969]) by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation (see Chakmakjian v NYRAC, Inc., 154 AD2d 644, 645 [1989]; Crazytown Furniture v Brooklyn Union Gas Co., 145 AD2d 402 [1988]). Here, Encompass's attorney's conclusory assertions were insufficient to satisfy this burden (see Bombard v Amica Mut. Ins. Co., 11 AD3d 647, 648 [2004]; see also Agovino v Taco Bell 5083, 225 AD2d 569 [1996]). Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was to compel Encompass to produce the documents contained in the plaintiff's claim file to the extent of directing Encompass to provide the Supreme Court with a detailed privilege log (see CPLR 3122; Clark v Clark, 93 AD3d 812 [2012]), and the matter must be remitted to the Supreme Court, Nassau County, for an in camera review of the allegedly privileged documents.

 

Ural v Encompass Ins. Co. of Am., 2018 NY Slip Op 01350 [2d Dept 2018]

The underlying facts of this case are summarized in the decision and order of this Court on a prior appeal in this action (see Ural v Encompass Ins. Co. of Am., 97 AD3d 562). On the prior appeal, this Court reinstated the plaintiff's causes of action to recover damages for unfair trade practices under General Business Law § 349 and for violation of Insurance Law § 2601, which prohibits unfair claim settlement practices. This Court determined that the defendants Encompass Insurance Company of America and Encompass Insurance Company (hereinafter together Encompass) were required to produce the documents contained in the plaintiff's claim file to the extent of directing Encompass to provide the Supreme Court with a "detailed privilege log" of documents claimed to be exempt from disclosure based upon a privilege or as work product for litigation (Ural v Encompass Ins. Co. of Am., 97 AD3d at 567). This Court further determined that the Supreme Court properly denied that branch of the plaintiff's motion which was to compel Encompass to comply with certain discovery demands because the demands were overbroad, lacked specificity, or sought irrelevant information, but declined to grant a protective order (see CPLR 3103).

After depositions of various witnesses, the plaintiff served Encompass with a third notice for discovery and inspection which made specific references to the deposition testimony in seeking, inter alia, various documents and other material. Encompass then moved for a protective order pursuant to CPLR 3103(a) with respect to the third notice for discovery and inspection, contending that the plaintiff was attempting to obtain, in numerous instances, information and documents that the Supreme Court and this Court had deemed to be palpably improper. The plaintiff cross-moved, inter alia, pursuant to CPLR 3126(3) to strike Encompass's verified answer and for leave to enter a default judgment against it for failure to comply with the plaintiff's outstanding discovery demands in the third notice for discovery and inspection and for failure to produce for in camera inspection the "detailed privilege log" which this Court, on the prior appeal, had directed Encompass to produce.

The Supreme Court denied Encompass's motion pursuant to CPLR 3103(a) for a protective order, and granted that branch of the plaintiff's cross motion which was pursuant to CPLR 3126(3) to strike Encompass's verified answer and for leave to enter a default judgment against it to the extent of conditionally striking certain portions of the verified answer and precluding Encompass from offering certain evidence at trial if Encompass failed to comply with the plaintiff's outstanding discovery demands from his third notice for discovery and inspection and produce the detailed privilege log for in camera inspection.

Pursuant to CPLR 3103(a), the Supreme Court may issue a protective order precluding disclosure that is palpably improper in that it seeks irrelevant and/or confidential information, or is overly broad and burdensome (see Greenman-Pedersen, Inc. v Zurich Am. Ins. Co., 54 AD3d 386, 387; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531). Contrary to Encompass's contention, the plaintiff's third notice for discovery and inspection was not palpably improper or overly broad and burdensome. Unlike the first two notices for discovery and inspection, the third notice for discovery and inspection provided specific references to deposition testimony, details, and time parameters, and sought information material and necessary to the pending causes of action (see Yoshida v Hsueh-Chih Chin, 111 AD3d 704). Accordingly, Encompass's motion pursuant to CPLR 3103(a) for a protective order against the plaintiff's third notice for discovery and inspection was properly denied.

Further, the Supreme Court properly granted that branch of the plaintiff's cross motion which was for relief pursuant to CPLR 3126(3) based upon Encompass's failure to comply with the prior order of this Court directing it to produce a detailed privilege log for in camera inspection (see Morales v Zherka, 140 AD3d 836Padovano v Teddy's Realty Assoc., Ltd., 31 AD3d 514, 515). Examination of the detailed privilege log in camera is necessary before a determination of whether certain items demanded in the third notice of discovery and inspection should in fact be disclosed. If such a log does not exist, then Encompass should so state to the Supreme Court as the reason for failing to produce it (see CPLR 3120[1][I]; Crawford v Burkey, 124 AD3d 1184Romeo v City of New York, 261 AD2d 379; Corriel v Volkswagen of Amer., 127 AD2d 729, 731). However, if such a log does not exist, Encompass cannot claim that the items demanded were privileged.

The Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's cross motion which was for relief pursuant to CPLR 3126(3) for failure to comply with the balance of the plaintiff's third notice for discovery and inspection, as there has been no clear showing that Encompass's lack of compliance with the third notice for discovery and inspection was willful and contumacious (see Dimoulas v Roca, 120 AD3d 1293Barnes v City of New York, 43 AD3d 1094Patel v DeLeon, 43 AD3d 432, 432-433). The items demanded in the third notice for discovery and inspection should be produced, and sanctions pursuant to CPLR 3126 should only be considered if Encompass continues to resist disclosure.

 

Considering that this firm usually takes a "rules are rules" position in Supreme Court, its position on appeal is hard to reconcile.