N.Y. C.P.L.R. § 3126

CPLR 3126 sanctions require the moving party to show willful and contumacious conduct or bad faith.

Scarano v. Bribitzer · filed 2008-11-25

To support a determination of sanctions pursuant to CPLR 3126, the moving party has the burden of demonstrating that the responsible party’s actions were “willful and contumacious” or in bad faith (Denoyelles v Gallagher, 40 AD3d 1027, 1027 [2007]; see Jenkins v Proto Prop. Servs., LLC, 54 AD3d 726 [2008]; Mylonas v Town of Brookhaven, 305 AD2d 561, 562 [2003]; Foncette v LA Express, 295 AD2d 471 [2002]).

A year-long pattern of disobeying repeated compliance conference orders can support an inference of willful and contumacious conduct under CPLR 3126.

Goldstein v. CIBC World Markets Corp. · filed 2006-06-13

Plaintiffs year-long pattern of noncompliance with the court’s repeated compliance conference orders gave rise to an inference of willful and contumacious conduct (see Merchants T & F, Inc. v Kase & Druker, 19 AD3d 134 [2005]).

Section 3126 permits sanctions for willful failure to attend a noticed pretrial examination without first obtaining an order under CPLR 3124.

Goldner v. Lendor Structures, Inc. · filed 1968-04-22

We are also of the opinion that a party, aggrieved by reason of his adversary’s willful failure to appear for an examination before trial pursuant to a notice, need not obtain an order under CPLR 3124 as a necessary prerequisite to a motion for the relief afforded under CPLR 3126.

Section 3126 permits a court to punish a failure to disclose without a prior motion to compel disclosure under section 3124.

Di Bartolo v. American & Foreign Insurance · filed 1966-01-07

Nor are we constrained to elasticize the governing statutory provisions and find therein a requirement that before a court may punish a failure to disclose (CPLR 3126) there must have been a prior motion to compel disclosure (CPLR 3124; Mostow v. Shorr, 44 Misc 2d 733).

CPLR 3126 gives courts broad discretion to fashion just remedies for failure to comply with disclosure orders.

Baker v. General Mills Fun Group, Inc. · filed 1979-01-04

In view of this goal, CPLR 3126 gives the court broad discretion to fashion such remedies as are just.

Section 3126 permits sanctions for failure to comply with discovery, but striking an answer may be too severe when a final opportunity to comply is appropriate.

Shampaner v. Epstein · filed 1980-11-03

We do not accept the city’s explanation for its failure to comply with court ordered discovery, but we hold that the sanction imposed was extreme under the circumstances of this case.

Section 3126 permits a court to decline discovery sanctions and direct the previously ordered deposition instead.

Turbin v. Metropolitan Transportation Authority · filed 1981-04-16

Let it be clearly understood that this direction is not by way of sanction, but rather to afford the plaintiffs the opportunity, heretofore granted to them, to elicit facts to establish their cause of action. The defendant County is given leave to renew this motion at the conclusion of the said depositions. The cross motions by the plaintiffs and defendant MSBA are granted only to the extent of directing the examination before trial referred to above.

Section 3126 provides sanctions when a party from whom disclosure is sought fails to appear or comply; this case involved the party seeking disclosure failing to conduct a court-ordered deposition.

Karutz v. Chicago Title Insurance · filed 1981-07-07

The situation presented in the case at bar differs in two significant respects, however, from the circumstances addressed above. In the instant case, the defaulting party is not the party against whom discovery is sought but rather the party seeking discovery (who fails to appear to conduct a court-ordered deposition).

Section 3126 gives courts broad discretion to fashion just remedies for failure to comply with a discovery order, including limiting the proof a party may offer.

Torian v. Lewis · filed 1982-10-14

The court has broad discretion in supervising disclosure and in fashioning just remedies concerning failure to comply with a discovery order ... The instant order was well within such discretion.

Section 3126 does not permit monetary sanctions for failing to provide informally requested material when no order or discovery notice requires its production.

Swisscraft Novelty Co. v. Salant & Salant, Division of Salant Corp. · filed 1983-01-06

Since the order of December 17, 1981 did not require defendant to produce any items for discovery and inspection, the defendant was not in default of any order when plaintiff sought discovery by order to show cause. Moreover, plaintiff had never served a notice for discovery and inspection upon defendant with reference to the King examination. When the dispute is viewed in that posture, defendant was under no legal obligation to provide the material informally requested by plaintiff. For that reason, Special Term abused its discretion in imposing monetary sanctions upon defendant under CPLR 3126.

Section 3126 permits serious sanctions for obstructing disclosure, but striking an answer is excessive when the conduct is not sufficiently contumacious and a monetary penalty will suffice.

Spancrete Northeast, Inc. v. Travelers Idemnity Co. · filed 1984-01-26

The tactics defendant employed merit the imposition of serious sanctions. Nevertheless, they were not so blatantly contumacious as to require the ultimate penalty of striking its answer on a substantial claim against which it has credible defenses.

A dismissal for failure to answer interrogatories may be vacated when the failure was not willful or contumacious.

Kahre-Richardes Family Foundation, Inc. v. Village of Baldwinsville · filed 1984-04-12

Memorandum: Plaintiffs move for an order vacating the default judgment dismissing their complaint against defendant village because of plaintiffs’ failure to serve answers to interrogatories in compliance with a conditional order (see CPLR 3126). Special Term properly decided to grant the motion in the exercise of its discretion inasmuch as there was no showing that plaintiffs’ failure was willful or contumacious ... Inasmuch as we have reinstated the request for a declaratory judgment ... we reverse and grant the motion as directed in Special Term’s original decision.

CPLR 3126 permits a monetary sanction for delayed interrogatory answers when dismissal is unwarranted.

Applied Electric Corp. v. City of New York · filed 1984-05-31

Accordingly we do not think these delays merit the extreme sanction of dismissal. But some sanction there must be, and accordingly we are conditioning the denials of the motions to dismiss upon the payment of the sums specified in our order.

CPLR 3126 leaves the nature and degree of a discovery penalty to the trial court’s discretion.

Associated Mutual Insurance v. Dyland Tavern, Inc. · filed 1984-11-01

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter lying soundly within the discretion of Special Term (Torian v Lewis, 90 AD2d 600, 601-602).

CPLR 3126 sanctions are unwarranted when a party’s failure to comply with disclosure was not willful or contumacious and the party made every attempt to comply.

Parascandola v. Kaplan · filed 1985-02-04

It ...does not appear that the defendant hospital acted in a willful, contumacious manner, in disregard of the plaintiffs’ demand for disclosure or the court-ordered enforcement thereof, which would justify the imposition of the sanctions herein by Special Term pursuant to CPLR 3126 (cf. Kramme v Town of Hemp-stead, 100 AD2d 447, 451).

Section 3126 gives courts discretion to order compliance with outstanding discovery requests when dismissal or counsel fees are unwarranted.

Salwen Paper Co. v. Lynch · filed 1985-04-29

Under the circumstances, neither dismissal nor an award of counsel fees was warranted, but it was an appropriate exercise of Special Term’s discretion to order plaintiff to comply with the outstanding discovery requests (CPLR 3126; Goldner v Lendor Structures, 29 AD2d 978).

CPLR 3126's ultimate sanction may be too severe when discovery noncompliance does not show an intent to forfeit a decision on the merits.

Caplin v. Ranhofer · filed 1985-08-01

... we think the ultimate sanction imposed under CPLR 3126 was too severe.

Section 3126 permits an unconditional sanction for willful failure to produce ordered discovery, including preclusion from disputing notice or striking the answer.

Ricco v. Deepdale Gardens Apartments Corp. · filed 1985-09-16

On these facts, defendant must be precluded from arguing that it had no notice of the defective condition on its premises from which the infant plaintiffs injuries resulted. We remit the matter to Special Term for a determination of whether defendant should merely be precluded from making such an argument, or whether its entire answer should be stricken.

CPLR 3126 requires sanctions when a party knowingly gives a false deposition answer concealing an eyewitness and leaves it uncorrected until trial.

Smith v. Malarczyk · filed 1986-03-06

Given the undisputed untruthfulness of defendant’s testimony at his examination before trial that there were no witnesses, and that this falsity was allowed to remain uncorrected for more than a year thereafter when it was discovered by plaintiff at the trial itself, the trial court’s refusal to impose sanctions, as requested by plaintiff pursuant to CPLR 3126, constituted reversible error.

Section 3126(1) permits a court to resolve a relevant issue against a party whose failure to comply with disclosure obligations frustrates discovery.

Shatzkamer v. Eskind · filed 1988-04-29(1)

While it is not the function of this court to tell a defendant the manner in which it is required to keep its records, nevertheless, the recordkeeping which, unintentionally or otherwise, results in the frustration of discovery mandates appropriate sanctions pursuant to CPLR 3126. ... Accordingly, for all the reasons stated above, this court grants the motion in each case to the extent that the plaintiff need not prove in either case that the defendant had written notice of the alleged defect.

Section 3126 permits a court to give a party one last opportunity to appear for an examination before trial instead of striking the party's answer.

Wolper v. LaGuardia Medical Group · filed 1988-10-17

On the record before us, it cannot be said that the order of the Supreme Court giving the respondent one last opportunity to appear for an examination before trial constitutes an abuse of discretion (see, CPLR 3126; De Joy v L & T Tavern Corp., 89 AD2d 613).

Section 3126 permits the Court of Claims to impose a monetary sanction directly on counsel for willfully obstructing a deposition, including wasted stenographer charges and reasonable attorney’s fees.

Kulers v. State · filed 1988-12-01

We are, of course, here concerned with the exception created by the inclusion of CPLR 3126 within section 27 of the Court of Claims Act by Laws of 1984 (ch 183). ... I hereby levy a monetary fine in the total sum of $287.50 against Assistant Attorney-General Kenneth L. Scheer, personally.

A discovery order resolving interrogatory answers in a party’s favor does not require summary judgment when those answers have limited relevance to the crucial issues.

Staten Island Hospital v. Home Insurance · filed 1989-03-13

The record contains an order dated June 9, 1987, entered upon the defendant’s default, resolving answers to the plaintiffs’ demand for written interrogatories in the plaintiffs’ favor. The questions posed in the demand have limited relevance to the crucial issues in this lawsuit. Therefore, the resolving order did not require the court to grant that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action.

Section 3126 permits a court to strike pleadings or resolve an issue against a party, but those consequences require an order.

White v. Scrofani · filed 1990-05-15

While we agree with Supreme Court’s ruling that Mr. Scrofani has displayed contempt for its proceedings, in the absence of an order striking his pleadings or resolving the issue against him (CPLR 3126), the question raised by his affidavit precludes a grant of summary judgment.

A court may vacate a judgment imposed under CPLR 3126 for failure to attend a deposition and direct the parties to complete discovery.

Friedman & Kaplan v. Hoffman · filed 1990-10-04

Order of the Supreme Court, New York County (Shirley Fingerhood, J.), entered March 9, 1990, which granted defendants’ motion for reargument and, upon reargument, inter alia, adhered to its order entered December 12, 1989 granting plaintiff judgment pursuant to CPLR 3126 upon defendants’ failure to appear for deposition, unanimously modified without costs, on the law and the facts and in the exercise of discretion, judgment and note of issue vacated, and the parties directed to appear for depositions and to complete discovery within 60 days after the entry of the order.

CPLR 3126 permits a court to impose a just monetary sanction on counsel for obstructing pretrial disclosure.

Taub v. Wulwick · filed 1990-12-10

The motion could therefore only be construed as one for sanctions pursuant to CPLR 3126, which authorizes the Supreme Court to make such orders "as are just” (see, CPLR 3126; see also, Mrs. London’s Bake Shop v City of Saratoga Springs, 144 AD2d 749; Rosner v Blue Channel Corp., 131 AD2d 654). We discern no injustice or improvident exercise of discretion in imposing a monetary sanction on counsel (see, Bermudez v Laminates Unlimited, 134 AD2d 314; Rosner v Blue Channel Corp., supra) and do not regard the amount imposed to be excessive.

CPLR 3126 permits sanctions for willful obstruction of disclosure, but a delay caused by challenging a defective subpoena does not justify monetary sanctions.

Kaufman v. Red Ground Corp. · filed 1991-02-11

It is well established that CPLR 3126 affords a court discretion to impose sanctions upon a party or attorney who has engaged in dilatory conduct and impeded disclosure by wilfully failing to comply with a discovery notice or order (see, Sloben v Stam, 157 AD2d 835; Rosner v Blue Channel Corp., 131 AD2d 654; Mancussi v Middlesex Ins. Co., 102 AD2d 846). Upon our review of the record, however, we find that the court improvidently exercised its discretion in imposing monetary sanctions against the plaintiff and his attorneys on the ground that they had unnecessarily delayed the deposition of non-party witness Robert Baron.

CPLR 3126 permits striking a party’s pleading for failure to comply with pretrial discovery orders, but a party that waits until trial to seek sanctions after certifying that discovery is complete waives the claim.

Brown v. Veterans Transportation Co. · filed 1991-02-25(3)

With respect to the conduct of the defendants, the proper remedies for failure to comply with pretrial discovery orders or for making previously possible disclosure impossible are found in CPLR 3126, which includes the sanction of striking the defaulting party’s pleadings (see, CPLR 3126 [3]; see also, Ferraro v Koncal Assocs., 97 AD2d 429). However, the plaintiffs failed to move for sanctions under CPLR 3126 at the appropriate time (i.e., prior to trial) and instead filed a note of issue and certificate of readiness, expressly affirming that discovery had been completed (see, CPLR 3402; Bermudez v Laminates Unlimited, 134 AD2d 314, 315). Accordingly, the plaintiffs waived any claim regarding noncompliance with pretrial disclosure and precalendar orders (see, Siragusa v Teal’s Express, 96 AD2d 749; Levy v Wexler, 16 AD2d 688).

Relief granted under CPLR 3126(3) is directly appealable even when characterized as a default judgment.

Banner Service Corp. v. Hall · filed 1992-07-14(3)

"Although characterized as a default judgment, relief granted under CPLR 3126 (3) is directly appealable (see, Pergamon Press v Tietze, 81 AD2d 831, 832, lv dismissed 54 NY2d 830; cf., CPLR 5511) because such an order or judgment is made on notice (CPLR 3215 [f] [1]), thus enabling the defaulting party to contest the motion; allowing a defaulting party to proceed by way of CPLR 5015 (a) (1) would grant him an extension of time in which to appeal, a result anathema to the legislative intent of CPLR 5513 [citation omitted].

Section 3126 permits a court to sanction deliberate, dilatory or wilful failure to comply with discovery by resolving an issue against the noncomplying party and precluding it from contesting that issue.

Jackson v. City of New York · filed 1992-08-13

Under CPLR 3126, sanctions may be imposed for deliberate, dilatory or wilful failure to comply with discovery (Commissioners of State Ins. Fund v Valenzano, 175 AD2d 687). ... For this reason, we find that the issue of notice to the City of the alleged defective condition that caused the plaintiff’s injuries should be resolved in favor of the plaintiff and defendant is precluded from raising any issue with respect thereto (see, Ricco v Deepdale Gardens Apts. Corp., 113 AD2d 822).

CPLR 3126 permits sanctions for a deliberate or willful failure to comply with discovery, and the motion court has discretion to choose the penalty.

Spira v. Antoine · filed 1993-03-09

Although, CPLR 3126 provides for the imposition of sanctions for a deliberate or willful failure to comply with discovery (Jackson v City of New York, 185 AD2d 768), it generally is within the discretion of the motion court to determine the appropriate penalty to be imposed against an offending party (Lowitt v Burton I. Korelitz, M.D., P. C., 152 AD2d 506, 507).

Section 3126 permits sanctions for failure to comply with disclosure demands when counsel ignores the demands and forces repeated motions, even without a finding of willfulness.

Oliveri v. Carter · filed 1993-06-01

Nevertheless, since the defendants’ counsel never moved for a protective order concerning these demands, first made in 1986, but simply waited until the plaintiff was forced to make a series of fruitless motions, sanctions are appropriate.

CPLR 3126 gives the court discretion to choose a penalty for failure to comply with disclosure obligations, including a conditional order striking an answer.

Soto v. City of Long Beach · filed 1993-10-18

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter of discretion for the court presented with the motion (see, Associated Mut. Ins. Co. v Dyland Tavern, 105 AD2d 892). Under the circumstances, we find that the court did not improvidently exercise its discretion.

CPLR 3126 leaves the choice of discovery sanction to the trial court’s sound discretion.

Gamble v. Anlynne, Inc. · filed 1993-12-13

While the sanction to be imposed pursuant to CPLR 3126 is within the sound discretion of the trial court (see, Rossi v Lin, 189 AD2d 868), we are of the view that, since a trial date has not been set and the plaintiff has not appeared for a deposition, the disposition reached herein is the more appropriate one (see, Mendelsohn v Murphy, 36 AD2d 625).

CPLR 3126 allows a court to preclude evidence when a party fails to produce ordered discovery; striking an answer requires a clear showing of willful, contumacious, or bad-faith conduct.

Gross v. Edmer Sanitary Supply Co. · filed 1994-02-17

The IAS Court did not abuse its discretion in refusing to strike defendant Buckingham’s answer pursuant to CPLR 3126, and, instead, imposing a sanction precluding defendant Buckingham from testifying or offering evidence at trial with respect to certain requested and court-ordered documents which Buckingham failed to produce, where, as here, the moving affidavit failed to set forth the type of dilatory and obstructive conduct which justified striking a pleading by conclusively showing that Buckingham’s default was clearly willful and contumacious or due to bad faith (Cinelli v Radcliffe, 35 AD2d 829), and the opposition papers indicate that Buckingham’s failure to produce the previously available documents subject to disclosure resulted from its destruction of the actual documentation sought in the course of cessation of operations (cf., Corona v A-B-C Packaging Mach. Corp., 129 AD2d 762; Ferraro v Roncal Assocs., 97 AD2d 429).

Section 3126 addresses sanctions for failure to comply with discovery requests; a motion under it does not give notice of sanctions for frivolous motion practice.

Green Point Savings Bank v. Marino · filed 1994-10-06

Plaintiff’s cross motion for relief, pursuant to CPLR 3126, was not sufficient notice to defendant or counsel that the court would possibly levy sanctions for frivolous motion practice inasmuch as that section solely deals with sanctions for a party’s failure to comply with discovery requests.

Section 3126 sanctions are discretionary, and a party answering an interrogatory need only answer the question actually posed.

Meraner v. Albany Medical Center · filed 1995-01-05

We affirm Supreme Court’s order denying plaintiffs’ relief under CPLR 3126. It is well settled that a trial court’s determination that sanctions under CPLR 3126 are not warranted will not be disturbed absent an improvident exercise of discretion (see, Cruzatti v St. Mary’s Hosp., 193 AD2d 579). Inasmuch as we agree with Supreme Court that a party responding to an interrogatory is not required to anticipate what information the proponent of the interrogatory is seeking but need only answer the actual question posed, there is no basis for disturbing its determination of this motion.

An order imposing a default judgment under section 3126(3) is directly appealable because it is made on notice and the defaulting party can contest the motion.

Schwenk v. St. Peter's Hospital · filed 1995-05-18(3)

Supreme Court properly held that plaintiffs remedy was an appeal from the default judgments entered pursuant to CPLR 3126 (3) (see, Banner Serv. Corp. v Hall, 185 AD2d 613; Champion v Wilsey, 150 AD2d 833, 834; Pergamon Press v Tietze, 81 AD2d 831, 832, lv dismissed 54 NY2d 605).

Section 3126 gives courts broad discretion to impose sanctions, including striking claims, when a party willfully disobeys a discovery order.

Paris v. Waterman Steamship Corp. · filed 1995-08-17

In terms of State procedural law, CPLR 3126 provides that the court has broad leeway, including striking claims, when a party willfully disobeys a discovery order.

Section 3126 sanctions of striking an answer or entering default judgment require a showing of willful discovery misconduct or violation of a discovery order.

Friendship, Inc. v. Wu · filed 1995-10-16

The requests of plaintiff to strike defendants’ answers or to render judgment for plaintiff by default for the alleged failure of defendants to comply with discovery requests must be denied. Plaintiff has not demonstrated that defendants acted willfully or violated a court order for discovery (CPLR 3126; Henry Rosenthal, Inc. v Bower & Gardner, 161 AD2d 374 [1st Dept 1990]).

CPLR 3126 permits a court to decline discovery sanctions when a party has complied with discovery orders and requests.

Hall Signs, Inc. v. Aries Striping, Inc. · filed 1995-11-13

The court did not improvidently exercise its discretion when it refused to impose sanctions pursuant to CPLR 3126, as the plaintiff had complied with discovery orders and requests (see, Ahroni v City of New York, 175 AD2d 789; Miller v Duffy, 126 AD2d 527).

Section 3126 leaves sanctions for discovery failures to the trial court’s discretion, including whether to preclude witnesses whose information was disclosed before trial.

Gomez v. New York City Housing Authority · filed 1995-12-21

It is settled that the imposition of sanctions for discovery misfeasance is a matter best left to the trial court’s discretion (CPLR 3126; Tavarez v DeLange, 190 AD2d 568; Lowitt v Burton I. Korelitz, M.D., P. C., 152 AD2d 506, 507). In viewing the circumstances as a whole, we find plaintiff had actual notice of the witnesses prior to trial. We also find that defendant’s failure to notify plaintiff of the address was not willful or contumacious (Fama v Marchetti, 215 AD2d 721). As a result, we conclude that the trial court committed no error in denying plaintiff’s application for preclusion or a recess to conduct depositions (see, Tavarez v DeLange, supra).

Section 3126 permits attorney’s fees as a condition of denying dismissal when a party delays discovery and fails to obey a discovery order.

Summit Waterproofing & Restoration Corp. v. Scarsdale Country Estates Owners, Inc. · filed 1996-06-03

It was not improper for the court to condition the denial of the respondent’s motion to dismiss the complaint upon the condition that the plaintiff pay the respondent attorney’s fees in the amount of $750 in view of the plaintiff’s delay in providing discovery and failure to comply with a previously-issued discovery order (see, CPLR 3126; Davis v City of New York, 205 AD2d 442).

CPLR 3126 gives courts discretion to sanction deliberate discovery delay, independently of the authority granted by 22 NYCRR 130-1.1.

Mazarakis v. Bronxville Glen I Ass'n · filed 1996-07-03

We conclude that Supreme Court’s award of sanctions should not be disturbed as it was not an improvident exercise of the court’s discretionary authority under CPLR 3126, which is separate and distinct from the authority granted by 22 NYCRR 130-1.1 (see, Taub v Wulwick, 168 AD2d 492, 493; see also, Siegel, NY Prac §§ 367, 414A, at 540, 631 [2d ed]).

Section 3126 permits penalties for willful failure to obey a discovery order, but a penalty may be reduced when it is too harsh.

Tony's Ornamental Iron Works, Inc. v. National Building & Restoration Corp. · filed 1997-03-14(3)

In view of defendant’s conduct during the course of discovery in this action, the court did not abuse its discretion in imposing a penalty pursuant to CPLR 3126. We conclude, however, in the exercise of our discretion that the penalty imposed is too harsh ... We therefore reverse the judgment, deny in part plaintiff’s motion, reinstate defendant’s answer and counterclaim and order that judgment be entered imposing a penalty of $5,000, plus costs and attorney’s fees, payable to plaintiff by the attorney who represented defendant prior to and at the time the order compelling discovery was obtained.

CPLR 3126 permits a party another opportunity to comply with a discovery demand when its initial failure to disclose has not clearly been shown to be willful.

1250 Broadway Parking Corp. v. 38-32 Associates · filed 1997-04-10

Plaintiff was properly given an opportunity to comply with defendant’s discovery demand, there being no clear showing that the failure to disclose in the first instance was willful (CPLR 3126).

CPLR 3126 gives courts discretion to deny a request for discovery sanctions.

Schad v. State · filed 1997-06-09

We find that the court did not improvidently exercise its discretion in denying the claimant’s request for sanctions under CPLR 3126.

CPLR 3126 (3) does not warrant a default judgment when the record does not show willful refusal to comply with a discovery order.

Robbins v. Navistar International Transportation Corp. · filed 1996-02-29(3)

As the record before us does not reflect that defendant has willfully refused to comply with the discovery order in question, Supreme Court properly denied plaintiffs’ motion in this regard.

CPLR 3126 (3) dismissal cannot rest on an ex parte oral motion made without notice to the plaintiff.

Johnson v. Haig · filed 1996-04-22(3)

The order dismissing the complaint pursuant to CPLR 3126 (3) was improperly based on an ex parte oral motion made by the defendant without giving notice to the plaintiff.

CPLR 3126 does not authorize a sanction for a discovery request that neither refuses to comply with a prior order nor fails to provide requested or ordered discovery.

Rosenfeld v. Kaplan · filed 1997-12-18

The sanction award pursuant to CPLR 3126 was error because defendants did not violate that provision. Their discovery request for the redacted income tax returns was not a refusal to comply with prior orders, because it did not constitute a failure to provide requested or ordered discovery and they demonstrated that the evidence sought was not otherwise available.

CPLR 3126 permits a court to deem issues related to destroyed disclosure information resolved against the responsible party without striking its answer.

Manning v. Ardsley Union Free School District · filed 1998-01-26

The court properly denied that branch of the plaintiffs’ motion which was to strike the answer of the defendant Ardsley Union Free School District (hereinafter Ardsley). The court properly exercised its discretion in directing that the issues to which the disclosure information destroyed by Ardsley was relevant would be deemed resolved against Ardsley (see, CPLR 3126).

CPLR 3126 permits a court to conditionally strike an answer and require payment of attorney’s fees when a party fails to comply with discovery requirements in a preliminary conference order.

Richard's Home Center & Lumber, Inc. v. Kownacki · filed 1998-02-02

It was not improper for the court to grant conditionally the respondent’s motion to strike the appellants’ answer unless the appellants paid $750 as attorney’s fees in view of the appellants’ failure to abide by the explicit terms of the court’s preliminary conference order insofar as it directed the appellants to comply with certain discovery demands (see, CPLR 3126; Summit Waterproofing & Restoration Corp. v Scarsdale Country Estates Owners, 228 AD2d 431; Davis v City of New York, 205 AD2d 442).

CPLR 3126 permits a court to resolve key facts as a sanction for willfully withholding discoverable information, provided the relief is commensurate with the disobedience.

Nunn v. GTE Sylvania, Inc. · filed 1998-06-10

Any relief granted pursuant to CPLR 3126 should be “commensurate with the particular disobedience it is designed to punish” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3126:8, at 758; see generally, Oak Beach Inn Corp. v Babylon Beacon, 62 NY2d 158, 166-167, cert denied 469 US 1158). In this case, we conclude that the relief granted, resolving key facts for the purpose of the action, constituted a proper exercise of discretion.

CPLR 3126 leaves severe discovery sanctions, including striking pleadings and precluding evidence, generally to the trial court’s discretion.

Agron v. Response Vehicle, Inc. · filed 1998-06-25

While the question of whether or not to impose the severe penalty of striking pleadings and precluding evidence pursuant to CPLR 3126 is generally left to the discretion of the trial court (Cherry v Herbert & Co., 212 AD2d 203, 209), in this matter, we find that appellant deserves at the very least to be awarded costs to compensate it for the time so cavalierly wasted by the City.

CPLR 3126 sanctions are unwarranted when disclosure noncompliance is not willful or contumacious.

McAllister v. City of New York · filed 1998-03-23

Under these circumstances, we discern no improvident exercise of discretion ... in the Supreme Court’s determination that the defendants’ conduct during disclosure did not constitute willful or contumacious noncompliance warranting the imposition of a sanction pursuant to CPLR 3126 (see, e.g., Harris v City of New York, 211 AD2d 663; Lestingi v City of New York, 209 AD2d 384).

CPLR 3126 permits dismissal of a complaint when a plaintiff willfully fails to comply with a court order.

Middleton v. Northern Dutchess Hospital · filed 1998-11-02

Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in granting the defendant’s motion to dismiss the plaintiff’s complaint since the plaintiff willfully failed to comply with the court’s order dated October 22, 1997 (see, CPLR 3126; Frias v Fortini, 240 AD2d 467; Kubacka v Town of N. Hempstead, 240 AD2d 374).

Section 3126 discovery sanctions should be subject to the same notice and opportunity to be heard protections as a motion to compel under section 3124.

Postel v. New York University Hospital · filed 1999-06-08

The same due process protections in CPLR 3124 should apply when CPLR 3126 is invoked.

CPLR 3126 allows a court to resolve factual issues as a sanction for failure to disclose, but the sanction must be warranted.

Paciello v. May Department Stores Co. · filed 1999-07-26

As a sanction for supposedly willful failure to make disclosure (see, CPLR 3126), the Supreme Court, upon the plaintiffs’ cross motion, ruled that the issues of fact related to this claim should be deemed resolved in favor of the plaintiffs. We find that this sanction was unwarranted (see generally, Saferstein v Stark, 171 AD2d 856; Rosado v Mercedes-Benz of N. Am., 103 AD2d 395; Calcados Samello v Intershoe Inc., 78 AD2d 796).

Section 3126 permits a hearing to determine whether evidence was wilfully discarded to frustrate discovery and whether a sanction less severe than dismissal is appropriate.

Klein v. Seenauth · filed 1999-03-25

Instead of arbitrarily adopting one of the conflicting positions, the court finds that a hearing is necessary to determine whether the subject bicycle was wilfully discarded or destroyed to frustrate movant’s interests, and whether less drastic remedies than the extreme sanction of dismissing plaintiffs complaint should be considered (see, Vaughn v City of New York, 201 AD2d 556).

Section 3126(2) gives courts broad discretion to impose discovery penalties, including precluding evidence and resolving factual issues against a party whose failure to comply is willful and contumacious.

Pearl v. Pearl · filed 1999-11-15(2)

It is well settled that a court has broad discretion in determining the nature and degree of the penalty to be imposed where a party has refused to comply with discovery demands (see, CPLR 3126 [2]; Robustelli v Robustelli, 262 AD2d 390; Maillard v Maillard, 243 AD2d 448). Here, the record clearly establishes the defendant’s repeated failure to comply with prior orders of the Supreme Court for discovery was willful and contumacious. Thus, the defendant was properly precluded from submitting evidence relating to his finances and financial issues of fact were properly deemed to be resolved in favor of the plaintiff (see, Brady v County of Nassau, 234 AD2d 408; Reed v Reed, 93 AD2d 105).

CPLR 3126 gives courts discretion to impose discovery sanctions, but striking an answer requires a clear showing of willful, contumacious, or bad-faith noncompliance.

Palmenta v. Columbia University · filed 1999-11-18

While the nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter of discretion with the court, striking an answer is inappropriate absent a clear showing that the failure to comply is willful, contumacious or in bad faith (Herrera v City of New York, 238 AD2d 475; Harris v City of New York, 211 AD2d 663), which must be affirmatively established by the moving party (Pimental v City of New York, 246 AD2d 467), whereupon the burden shifts to the nonmoving party to establish a reasonable excuse, with appropriate findings to be made by the court (Corner Realty 30/7 v Bernstein Mgt. Corp., 249 AD2d 191, 193). In view of the single incident of noncompliance, the failure to establish willfulness or bad faith by Sunset and, moreover, the reasonableness of its excuse, it was an improvident exercise of discretion to strike Sunset’s answer.

The trial court has discretion to choose the nature and degree of a penalty under CPLR 3126, subject to review for abuse or improvident exercise of discretion.

Kimmel v. State · filed 1999-12-30

The nature and degree of the penalty to be imposed on a CPLR 3126 motion lies within the sound discretion of the trial court and will be disturbed only if there has been an abuse or improvident exercise of discretion (see, Mohammed v 919 Park Place Owners Corp., 245 AD2d 351, 352; Herrera v City of New York, 238 AD2d 475, 476; Grabow v Blue Eyes, 123 AD2d 155, 158; Associated Mut. Ins. Co. v Dyland Tavern, 105 AD2d 892, 893).

Section 3126 gives courts discretion over discovery penalties, but striking a pleading and precluding evidence requires a clear showing of willful, deliberate, and contumacious noncompliance.

Lones v. Lampeas · filed 2000-03-13

While the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter of discretion, the drastic remedy of preclusion, which results in the striking of a pleading, should be invoked only upon a clear showing that the noncomplying party’s failure to provide discovery was willful, ... deliberate, and contumacious (see, Kihl v Pfeffer, 94 NY2d 118; Maillard v Maillard, 243 AD2d 448; Garcia v Kraniotakis, 232 AD2d 369; Vatel v City of New York, 208 AD2d 524).

Section 3126 gives trial courts discretion over discovery sanctions; preclusion should be imposed only for willful, deliberate, and contumacious noncompliance or its equivalent.

Brown v. United Christian Evangelistic Ass'n · filed 2000-03-20

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 for failure to comply with discovery demands and orders is within the trial court’s discretion (see, CPLR 3126; Garcia v Kraniotakis, 232 AD2d 369; Schoffel v Velez, 118 AD2d 492). The penalty of preclusion is extreme and should be imposed only when the failure to comply with a disclosure order is the result of willful, deliberate, and contumacious conduct or its equivalent (see, Halley v Winnicki, 255 AD2d 489; Garcia v Kraniotakis, supra; Vatel v City of New York, 208 AD2d 524).

CPLR 3126 leaves the choice of discovery penalty to the court’s discretion, but striking a pleading or precluding evidence requires a showing of willful, contumacious, or bad-faith conduct.

Fitterer v. Gus Riedlinger's Towing Service, Inc. · filed 2000-04-03

In addition, the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the court, and the drastic remedies of striking a pleading or preclusion should only be invoked upon a showing of conduct which is willful, contumacious, or in bad faith (see, Garnett v Hudson Rent A Car, 258 AD2d 559; Maillard v Maillard, 243 AD2d 448; Kubacka v Town of N. Hempstead, 240 AD2d 374).

Section 3126 allows a court to decline discovery sanctions when there is no proof of contumacious conduct or bad faith.

Beck v. Morse · filed 2000-04-27

We have considered plaintiffs’ claim that Supreme Court erred in failing to impose sanctions for defendants’ failure to comply with their discovery demands and, given the absence of proof that defendants acted contumaciously or in bad faith, find that the court did not abuse its discretion in declining to do so (see, Nabonzny v Cappelletti, 267 AD2d 623, 625; Puccia v Farley, 261 AD2d 83, 85).

CPLR 3126(1) permits a conditional discovery sanction when a party’s lack of diligence and delay in producing records prejudice the requesting party.

McIntosh v. City of New York · filed 2000-08-07(1)

Thus, the imposition of a conditional sanction is appropriate (see, Donovan v City of New York, 239 AD2d 461; CPLR 3126 [1]; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3124:6, at 741).

A court may impose a less drastic disclosure sanction than striking an answer for willful failure to attend court-ordered depositions when the circumstances warrant it.

Peycke v. Towns Bus Corp. · filed 2000-10-02

Nevertheless, under the circumstances presented, including the fact that the defendants had not received all relevant medical records pursuant to their outstanding authorized demands, the Supreme Court improvidently exercised its discretion in striking their answer instead of imposing a less drastic sanction to insure disclosure (see, Askinazy v Jacobson, 40 AD2d 860; see also, Cohen v Maimonides Med. Ctr., 268 AD2d 550; Cruzatti v St. Mary’s Hosp., 193 AD2d 579; cf., Flores v Bueno, 246 AD2d 466).

CPLR 3126(3) gives courts discretion to deny a default judgment for discovery violations and instead give the noncomplying party a final opportunity to comply through a conditional order.

Torres v. City of New York · filed 2001-02-20(3)

While we note our disapproval of defendant-respondent’s continued disregard and frustration of the court’s discovery orders and would uphold a more severe sanction in this matter, we cannot find that the motion court improvidently exercised its discretion in denying plaintiffs motion for a default judgment against the City, and instead granted a conditional order that gives the City one last opportunity to comply with its disclosure obligations before suffering a final sanction that would effectively preclude it from denying its negligence.

CPLR 3126 permits a court to preclude a party from presenting liability evidence when it fails to provide required discovery.

Provenzano v. Turner Construction Co. · filed 2000-08-07

—In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Thomas, J.), dated September 8, 1999, which, in effect, granted the plaintiff’s motion, inter alia, pursuant to CPLR 3126 to strike their answer to the extent of precluding them from presenting evidence at trial on the issue of liability for failure to provide discovery. ... Ordered that the order is affirmed, with costs.

CPLR 3126 leaves the nature and degree of a penalty for refusing to obey a disclosure order or willfully failing to disclose to the Supreme Court’s discretion.

Dacey v. Horror Cafe, Inc. · filed 2002-04-08

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” is a matter within the discretion of the Supreme Court (CPLR 3126; see Zletz v Wetanson, 67 NY2d 711; DeJulio v Wulf, 260 AD2d 425; Kubacka v Town of N. Hempstead, 240 AD2d 374).

CPLR 3126 permits a court to preclude a party who willfully refuses an examination before trial from offering evidence on his own behalf unless he appears for the examination.

Mermelstein v. Kalker · filed 2002-05-13

A more appropriate sanction is to preclude Texidor from offering evidence on his own behalf at trial unless he appears for an examination before trial no later than 30 days prior to trial.

Section 3126 permits a court to refuse to strike an answer for discovery failures that were not willful, contumacious, or in bad faith, while precluding testimony from witnesses the party repeatedly failed to identify.

Kauffman v. Triborough Bridge & Tunnel Authority · filed 2002-06-13

Indeed, given the 12 depositions of defendant’s employees, ... the motion court’s refusal to strike defendant’s answer pursuant to CPLR 3126 was entirely proper. However, in light of the repeated failure of defendant to provide the names of persons employed by it at the time of the subject incident, we find that defendant should be precluded from offering testimony of any such witness who has not been identified (see, New v Scores Entertainment, 255 AD2d 108).

A party subject to a CPLR 3126 default must appeal the resulting order or judgment directly to challenge it.

Hartloff v. Hartloff · filed 2002-07-03

Defendant was on notice of plaintiff’s motion pursuant to CPLR 3126 to compel and preclude, and thus his sole remedy with respect to the order and judgment granting plaintiffs motion was a direct appeal therefrom.

Section 3126 permits a court to impose a monetary penalty for prolonged discovery delay without striking a party’s answer.

Holliday v. "John Jones" · filed 2002-09-05

While the discovery noncompliance by defendant City cannot be found to have been of such nature that the City’s answer should be stricken or that a comparably harsh sanction pursuant to CPLR 3126 should be imposed at this time (see, Catarine v Beth Israel Med. Ctr., 290 AD2d 213), we nevertheless find that the imposition of a $2,500 penalty is warranted in view of ... the lengthy and continuing untenable delay.

CPLR 3126 leaves the nature and degree of a penalty for failure to disclose to the trial court’s sound discretion.

Castelle v. Evangelista · filed 2002-10-07

The nature and the degree of the penalty to be imposed pursuant to CPLR 3126 for a party’s failure to disclose is a determination that lies within the sound discretion of the trial court (see Lavi v Lavi, 256 AD2d 602; Kubacka v Town of N. Hempstead, 240 AD2d 374). In this case, the plaintiff engaged in a pattern of conduct over a period of time which evidenced a willful and contumacious intent to not provide disclosure.

A court may not impose a harsher discovery sanction under CPLR 3126 than the sanction the parties agreed would apply to the noncompliance.

Siltan v. City of New York · filed 2002-12-02

Accordingly, the Supreme Court erred in imposing a sanction other than the agreed-upon sanction when the appellants did not comply with the so-ordered stipulation (see Tirone v Staten Is. Univ. Hosp., supra; Ferrantello v St. Charles Hosp. & Rehabilitation Ctr., 249 AD2d 263; Smith v City of New York, 239 AD2d 337, 338).

CPLR 3126 applies when a party refuses to obey a disclosure order or wilfully fails to disclose material the court finds should be disclosed.

Piazza v. Great Atlantic & Pacific Tea Co. · filed 2002-12-09

As Lodato correctly contends, the Supreme Court erred in applying CPLR 3126 to this action, as such provision is only applicable to parties in an action who refuse to obey an order for disclosure, or wilfully fail to disclose material which the court finds ought to be disclosed (see CPLR 3126; DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41, 49). Here, there was no finding that Lodato failed to obey a court order or wilfully failed to disclose material.

A conditional discovery sanction becomes absolute when the party fails to comply by the deadline.

Marrone v. Orson Holding Corp. · filed 2003-02-03(3)

As a result of the defendants’ failure to produce a witness for a deposition on or before May 17, 2002, the conditional order dated April 17, 2002, became absolute (see Stewart v City of New York, 266 AD2d 452; Clissuras v Concord Vil. Owners, 233 AD2d 475).

Section 3126 permits sanctions for failure to comply with a discovery order, but the sanction must be appropriate to the violation.

Sandoro v. Sandoro · filed 2003-03-21

We conclude, however, that the court abused its discretion in ordering payment of the entire escrow account to plaintiff as a sanction for defendant’s failure to comply with the discovery order by, inter alia, failing to appear at a deposition. We therefore modify the order by vacating the third ordering paragraph and we remit the matter to Supreme Court, Erie County, for the imposition of appropriate sanctions pursuant to CPLR 3126 and a determination of the issues of plaintiffs entitlement to maintenance and counsel fees.

Section 3126 gives the Supreme Court broad discretion to decide whether and to what degree to impose sanctions for discovery violations.

Riley v. ISS International Service System, Inc. · filed 2003-04-14

It is within the Supreme Court’s broad discretion to determine whether — and to what degree — to impose sanctions against a party for discovery violations (see CPLR 3126; Barth v City of New York, 294 AD2d 386 [2002]; Mohammed v 919 Park Place Owners Corp., 245 AD2d 351 [1997]; Cruzatti v St. Mary’s Hosp., 193 AD2d 579 [1993]).

CPLR 3126 permits striking a defense or precluding evidence for disclosure misconduct when the record warrants those sanctions.

Santigate v. Linsalata · filed 2003-04-14

The record does not support the plaintiffs’ argument that the defendants wilfully refused to provide pretrial disclosure, or failed to serve a bill of particulars as to their fourth affirmative defense, under circumstances that would warrant either the extreme sanction of striking their fourth affirmative defense or precluding them from offering evidence in support of that defense (see CPLR 3126; cf. Kihl v Pfeffer, 94 NY2d 118 [1999]).

CPLR 3126 sanctions for delayed depositions are unwarranted when adjournment requests do not materially delay the case.

Ortega v. Bisogno & Meyerson · filed 2003-12-15

The Supreme Court improvidently exercised its discretion in imposing monetary sanctions against the defendants and their attorneys on the ground that they unnecessarily delayed depositions and engaged in frivolous conduct. The defendants’ requests to adjourn their depositions over a four-month period did not cause a material delay in the prosecution of the case (see Tschernia v Embanque Capital Corp., 161 AD2d 585 [1990]).

Section 3126 leaves discovery sanctions to the court’s discretion, and an appellate court will not disturb that decision absent an abuse of discretion.

Talansky v. Schulman · filed 2003-12-30

With respect to the motion to strike, the imposition of sanctions pursuant to CPLR 3126 is within the sound discretion of the court, and, absent an abuse, a court’s decision on sanctions will not be disturbed on appeal (see Gross v Edmer Sanitary Supply Co., 201 AD2d 390 [1994]).

Section 3126 allows a court to impose an appropriate remedy when a party disobeys a disclosure order or willfully fails to disclose information.

Cavanaugh v. Russell Sage College · filed 2004-02-19

CPLR 3126 authorizes a court to fashion an appropriate remedy when a party refuses to obey an order of disclosure or willfully fails to disclose information.

CPLR 3126 gives courts discretion to choose a penalty for disobeying discovery orders, including precluding a party from testifying at trial.

Huggins v. Parkset Plumbing Supply, Inc. · filed 2004-05-17

The Supreme Court granted the motion only to the extent of precluding those defendants from testifying at trial. This was a provident exercise of discretion in determining the nature and degree of the penalty to be imposed ... pursuant to CPLR 3126 (see Jaffe v Hubbard, 299 AD2d 395 [2002]; Grisales v City of New York, 292 AD2d 419 [2002]; Nicoletti v Ozram Transp., 286 AD2d 719 [2001]).

Section 3126 permits penalties for discovery failures when the conduct is willful, contumacious or in bad faith and lacks an adequate excuse.

Reel v. College of New Rochelle · filed 2004-06-29

There was also no clear showing that failure to comply with discovery was willful, contumacious or in bad faith, coupled with the absence or inadequacy of excuse (compare Castrignano v Flynn, 255 AD2d 352 [1998]; CPLR 3126).

CPLR 3126 allows a court to impose an appropriate sanction when a party disobeys a disclosure order or willfully fails to disclose information.

Appler v. Riverview Obstetrics & Gynecology, P.C. · filed 2004-07-01

CPLR 3126 authorizes a court to fashion an appropriate remedy when a party refuses to obey an order of disclosure or willfully fails to disclose information.

Section 3126 gives courts discretion to choose sanctions for a party’s willful failure to provide discovery.

Cafaro v. Emergency Services Holding, Inc. · filed 2004-10-12

The Supreme Court acted well within its discretion in striking the defendant’s second counterclaim and declining to strike either the defendant’s affirmative defense or its first counterclaim, insofar as that sanction was sought and imposed for the defendant’s willful failure to meaningfully address the plaintiffs’ discovery requests (see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]; International Consulting Servs. v Kiss, 5 AD3d 734 [2004]; Riley v ISS Intl. Serv. Sys., supra; Decavallas v Pappantoniou, 300 AD2d 617 [2002]; Gomez v Gateway Demolition Corp., 293 AD2d 649 [2002]).

CPLR 3126 provides discretionary discovery remedies distinct from sanctions under 22 NYCRR 130-1.1.

Hilley v. Sanabria · filed 2004-11-19

Remedies within the court’s discretion pursuant to CPLR 3126 are different from remedies pursuant to the regulations (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3126:11), and here the relief sought was under CPLR article 31.

CPLR 3126 permits a monetary sanction for misleading representations about evidence, delay in producing it in readable form, and the need for a motion to compel production.

Jacobs v. Macy's East, Inc. · filed 2005-04-04

Nonetheless, in light of the defendants’ misleading representations concerning the existence of critical computer tapes and paper files necessary to support that branch of the plaintiffs’ motion which was for class action certification, the defendants’ delay in producing them in a readable form, and the necessity of motion practice ultimately to compel their production, a monetary sanction in the amount of $5,000, was warranted (see Riley v ISS Intl. Serv. Sys., 304 AD2d 637, 637-638 [2003]; Smith v New York Tel. Co., 235 AD2d 529, 530 [1997]; Barbiere v Motamed, 209 AD2d 368 [1994]).

CPLR 3126 gives courts discretion to sanction a party for disobeying a disclosure order, but the sanction should be narrowly tailored to the circumstances.

Matusewicz v. Jo Jo's Auto Parts, Inc. · filed 2005-05-31

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who fails to obey an order directing disclosure is generally a matter within the discretion of the Supreme Court (see Jaffe v Hubbard, 299 AD2d 395 [2002]). However, the remedy should be as “narrowly tailored as possible to the circumstances of the individual case” (DiDomenico v C&S Aeromatik Supplies, 252 AD2d 41, 49 [1998]).

A court must give a party an opportunity to oppose a request for a conditional order of preclusion under CPLR 3126.

Mahopac Ophthalmology, P.C. v. Tarasevich · filed 2005-08-01

The Supreme Court improvidently exercised its discretion in granting the defendant’s request for a conditional order of preclusion since the plaintiff did not have an opportunity to oppose the request before the Supreme Court granted it.

CPLR 3126 gives the trial court discretion to strike a pleading or order preclusion when a party disobeys a disclosure order or fails to respond to discovery demands.

Franznick v. Town of Huntington · filed 2005-09-06

It is within the Supreme Court’s discretion to supervise discovery, and to determine motions pursuant to CPLR 3126 to strike a pleading or award preclusion when a party has failed to obey a court order for disclosure or to respond to discovery demands (see CPLR 3126; Mendez v City of New York, 7 AD3d 766, 767 [2004]; Setsuo Ito v Dryvit Sys., 5 AD3d 735 [2004]). Under the circumstances of this case, the Supreme Court providently exercised its discretion by, in effect, denying the plaintiffs motion, inter alia, to strike the defendant’s answer.

CPLR 3126 permits a court to preclude trial testimony if a party fails to appear for a court-ordered deposition, with the penalty left to the trial court’s discretion.

Briano v. LKT Transport · filed 2005-11-14

The nature and degree of a penalty imposed pursuant to CPLR 3126 for failure to comply with discovery is within the trial court’s discretion (see Razmilovic v Dowd, 14 AD3d 546 [2005]). The appellants failed to appear for a court-ordered deposition. Under the circumstances, the court providently exercised its discretion in directing the appellants to appear for depositions within 60 days or be precluded from testifying at trial (see Razmilovic v Dowd, supra; Reyes v Vanderbilt, 303 AD2d 391, 392 [2003]).

A party whose complaint was dismissed after defaulting in opposition to a CPLR 3126 motion may seek to vacate that default; an appeal is the sole remedy when the motion was properly contested.

Parker v. State Farm Mutual Automobile Insurance · filed 2006-02-23

While there is no question that, in a properly contested motion “predicated upon CPLR 3126, an appeal of [the resulting] order or judgment is the proper and sole remedy for the defaulting party” (Pinapati v Pagadala, 244 AD2d 676, 677 [1997]; see Schwenk v St. Peter's Hosp. of City of Albany, 215 AD2d 906, 908 [1995], lv dismissed 86 NY2d 838 [1995]), here, the default that plaintiff sought to vacate was her default in opposing defendant’s motion to preclude in the first instance. Therefore, Supreme Court did not err in entertaining her motion to vacate (see generally Sik Bun Yuen v Huang, 18 AD3d 460 [2005]; State Empls. Fed. Credit Union v Starke, 274 AD2d 656, 657-658 [2000]; 10 Carmody-Wait 2d § 70:33 [2005]).

CPLR 3126 permits a monetary sanction to compensate counsel for time and costs caused by obstructive conduct at a deposition.

O'Neill v. Ho · filed 2006-04-18

Under the circumstances, a monetary sanction in the amount of $1,500 is warranted to compensate the plaintiffs’ counsel for the time expended and costs incurred in connection with the aborted deposition session (see CPLR 3126; Jacobs v Macy's E., Inc., 17 AD3d 318, 320-321 [2005]; Barbiere v Motamed, 209 AD2d 368 [1994]).

Section 3126 does not warrant dismissal or monetary sanctions when a party substantially complies with discovery requests and its conduct is not willful, contumacious, or in bad faith.

A.F.C. Enterprises, Inc. v. New York City School Construction Authority · filed 2006-10-17

The Supreme Court properly declined to dismiss the complaint, finding that the plaintiff substantially complied with outstanding discovery requests and that its conduct was not willful, contumacious, or in bad faith ... For the same reasons, monetary sanctions were not warranted.

CPLR 3126 sanctions require a showing of willful and contumacious failure to comply with court-ordered discovery.

Bach v. City of New York · filed 2006-10-26

Nor did plaintiff demonstrate grounds for sanctions pursuant to CPLR 3126. No willful and contumacious failure by defendant to comply with court-ordered discovery was shown (see Nussbaum v D'Amico, 29 AD3d 449 [2006]).

CPLR 3126 permits sanctions for discovery failures when the moving party demonstrates wilful and contumacious noncompliance with discovery demands or prior court orders.

Wasif v. Khan · filed 2007-01-09

Furthermore, the plaintiffs failed to demonstrate that the defendant wilfully and contumaciously failed to respond to discovery demands or to substantially comply with prior court orders (see Faulkner v City of New York, 32 AD3d 452 [2006]; Kuzmin v Visiting Nurse Serv. of N.Y., 22 AD3d 643, 643-644 [2005]; Pascarelli v City of New York, 16 AD 3d 472, 472-473 [2005]).

Section 3126 provides penalties for refusal to comply with discovery orders; it does not support a motion that alleges no such refusal.

Town of Macedon v. Hsarman · filed 2007-06-08

CPLR 3126 provides penalties for refusal to comply with discovery orders. The motion before the court makes no reference to failure or refusal on plaintiffs part in this respect.

CPLR 3126 leaves the nature and degree of discovery penalties to the court’s discretion.

1523 Real Estate, Inc. v. East Atlantic Properties, LLC · filed 2007-06-12

Actions should be resolved on the merits wherever possible (see Zouev v City of New York, 32 AD3d 850 [2006]), and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter of discretion with the court (see Birch Hill Farm v Reed, 272 AD2d 282 [2000]).

Section 3126(3) permits striking a pleading for failure to comply with discovery, but requires a clear showing that the failure was willful, contumacious, or in bad faith.

Conciatori v. Port Auhtority of New York & New Jersey · filed 2007-12-04(3)

However, “striking [a pleading] is inappropriate absent a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith” (Espinal v City of New York, 264 AD2d 806 [1999] [internal quotation marks omitted]). Although the defendant failed to produce for a deposition a witness with adequate knowledge of the operation of buses at the airport, the record does not reveal willful and contumacious disobedience warranting the extreme relief requested by the plaintiffs (see Kuzmin v Visiting Nurse Serv. of N.Y., 22 AD3d 643, 644 [2005]).

Section 3126(1) permits a court to deem relevant issues resolved against a party whose failure to provide discovery is willful.

Incorporated Village of Cove Neck v. Petrara · filed 2008-01-29(1)

Where a party fails or willfully refuses to make disclosure, CPLR 3126 authorizes the court, inter alia, to issue “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]).

Section 3126 gives trial courts discretion to choose a penalty for failure to comply with discovery orders.

McArthur v. New York City Housing Authority · filed 2008-02-05

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court (see Kihl v Pfeffer, 94 NY2d 118, 122-123 [1999]; Rowell v Joyce, 10 AD3d 601 [2004]; My Carpet, Inc. v Bruce Supply Corp., 8 AD3d 248 [2004]).

The trial court has discretion to choose a CPLR 3126 penalty, and repeated failures to respond to discovery demands or comply with discovery orders may support an inference of willful and contumacious conduct.

Suazo-Alvarez v. Nordlaw, LLC · filed 2008-02-19(3)

It is well settled that the nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court (see CPLR 3126 [3]; Kihl v Pfeffer, 94 NY2d 118, 122-123 [1999]; Rowell v Joyce, 10 AD3d 601 [2004]; My Carpet, Inc. v Bruce Supply Corp., 8 AD3d 248 [2004]; Joseph v Iannace, 6 AD3d 502, 503 [2004]; Ordonez v Guerra, 295 AD2d 325, 326 [2002]). There is nothing in the record herein that warrants disturbing the court’s exercise of its discretion in this case.

Section 3126 permits a monetary penalty for discovery failures even when striking a pleading is unwarranted.

Adzer v. Rudin Management Co. · filed 2008-04-29

Notwithstanding the foregoing, and because we find that the plaintiffs were unnecessarily required to make successive motions in an effort to obtain the discovery responses, the Supreme Court improvidently exercised its discretion in failing to impose any penalty upon the attorneys for the Rudin defendants. While we agree that the ultimate penalty of striking the pleadings was not warranted, we conclude that the Supreme Court should have imposed a penalty upon the attorneys for the Rudin defendants in the sum of $1,500, payable to the plaintiffs (see DeCintio v Ahmed, 276 AD2d 463 [2000]).

CPLR 3126 does not permit dismissal for failure to produce a document the requesting party is not entitled to discover.

State Farm Insurance v. Aracena-Almonte · filed 2008-05-27

Since the defendant was not entitled to discovery of such document, the Supreme Court erred in granting that branch of his motion which was pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against him unless the plaintiff provided him with the document (see Donskoi v Donskoi, 38 AD3d 708 [2007]; cf. Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531 [2007]).

Section 3126 gives courts discretion to choose a remedy for failure to comply with a discovery order; striking an answer requires a clear showing of willful or contumacious noncompliance.

Pangea Farm, Inc. v. Sack · filed 2008-05-29

Where, as here, a party fails to comply with a discovery order, CPLR 3126 authorizes the court to fashion an appropriate remedy, the nature and degree of which is a matter committed to the court’s sound discretion ... We therefore conclude that Supreme Court, which was well aware of the various actions pending between the parties and the full history thereof, did not abuse its discretion in denying plaintiffs motion to strike defendant’s answer.

Section 3126 permits a negative inference charge instead of striking an answer when a party reasonably explains its failure to provide evidence and the opposing party can still prove its claim.

Zeolla v. Kimche · filed 2008-06-10

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered April 6, 2007, which, in these personal injury actions arising from a multivehicle accident, granted the motions of plaintiff John Zeolla (Action No. 1, index No. 17045/04) and plaintiff George Garcia (Action No. 2, index No. 114250/04), pursuant to CPLR 3126, to strike the answers of defendants/ third-party defendants Frank Inzano and Hilltop Service Station Co., Inc. for failure to comply with discovery orders, unanimously reversed, on the facts, without costs, the answers reinstated and the motions granted only to the extent of directing that the trial court give a negative inference charge against defendants.

Before a court strikes an answer under CPLR 3126, the party must have prior notice that such a sanction might be imminent.

Sidelev v. Tsal-Tsalko · filed 2008-06-24

The court improvidently exercised its discretion under CPLR 3126 in denying defendants’ motion to vacate the striking of their answer, since they did not have “prior notice . . . that such a sanction might be imminent” (Postel v New York Univ. Hosp., 262 AD2d 40, 42 [1999]).

CPLR 3126 permits discovery sanctions for willful or contumacious delay in disclosure; a court may deny sanctions when the moving party made no formal discovery request and the other party complied with some requests and orders.

Rosado v. Edmundo Castillo Inc. · filed 2008-08-19

Denial of that branch of plaintiffs initial motion that sought discovery sanctions pursuant to CPLR 3126 with leave to renew was also a proper exercise of discretion. Since plaintiff never made a formal discovery request pursuant to CPLR 3120, and defendants have complied with some informal discovery requests and discovery orders, it cannot be said that the latter’s delay in disclosing certain documents was willful or contumacious (see e.g. Guzetti v City of New York, 32 AD3d 234 [2006]).

CPLR 3126 permits a court to preclude evidence as a sanction for repeated failures to provide requested discovery.

Tartan Textile Services, Inc. v. St. Joseph's Hospital Health Center · filed 2009-02-06

Under the circumstances of this case, we conclude that the court did not abuse or improvidently exercise its discretion in fashioning an appropriate sanction for plaintiff’s repeated failures to provide requested discovery (see CPLR 3126; see Optic Plus Enters., Ltd. v Bausch & Lomb Inc., 37 AD3d 1185, 1186-1187 [2007]; Kimmel v State of New York, 267 AD2d 1079, 1080-1081 [1999]).

CPLR 3126 permits dismissal for discovery noncompliance when the conduct is clearly shown to be willful or contumacious; inexcusable delay may warrant a monetary sanction.

Advanced Fertility Services v. Yorkville Towers Associates · filed 2009-04-14

While the drastic relief that defendants seek was properly denied for lack of a clear showing that the noncompliance was willful or contumacious (see Delgado v City of New York, 47 AD3d 550 [2008]), plaintiff’s inexcusable laxness “should not escape adverse consequence” (Figdor v City of New York, 33 AD3d 560, 561 [2006]; see Postel v New York Univ. Hosp., 262 AD2d 40, 42 [1999]), and we modify accordingly.

Section 3126 gives courts discretion to set discovery sanctions, including preclusion conditioned on compliance and payment of costs and attorney’s fees.

Perry v. Town of Geneva · filed 2009-07-10

Generally, “[t]he nature and degree of the penalty to be imposed on a CPLR 3126 motion lies within the sound discretion of the trial court and will be disturbed only if there has been an abuse or [an] improvident exercise of discretion” ... Thus, in the exercise of our discretion we modify the order by providing that the preclusion motion is granted unless plaintiff, within 15 days of service of the order of this Court with notice of entry, serves a verified bill of particulars complying with each item of the demand and pays defendant’s attorney $1,500 toward costs and attorney’s fees as a sanction.

Section 3126 permits a court to preclude evidence and impose a conclusive presumption when a party fails to comply with disclosure obligations.

Emmitt v. City of New York · filed 2009-10-15

A party that disobeys court-ordered disclosure is subject to preclusion of relevant portions of its evidence (CPLR 3126). ... We modify only to clarify that it will be conclusively presumed at trial that defendant created or had notice of the trench involved in the accident.

CPLR 3126 leaves the choice of discovery penalty to the trial court’s discretion; striking a pleading may be appropriate when noncompliance is willful or contumacious.

Dank v. Sears Holding Management Corp. · filed 2010-01-05

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the Supreme Court (see Kihl v Pfeffer, 94 NY2d 118, 122-123 [1999]). ... Contrary to the plaintiffs contentions, the defendants’ conduct in responding to the plaintiffs interrogatories, while not always forthcoming, was not willful or contumacious because they did not repeatedly fail to respond to discovery demands.

CPLR 3126 leaves the nature and degree of discovery penalties to the motion court’s discretion.

Isaacs v. Isaacs · filed 2010-03-23

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 Pryzant v City of New York, 300 AD2d 383 [2002]; Kingsley v Kantor, 265 AD2d 529 [1999]; Kelleher v Mt. Kisco Med. Group, 264 AD2d 760 [1999]; Roach v Roach, 193 AD2d 660 [1993]).

Section 3126 does not support discovery sanctions when the claim of sanctionable conduct lacks merit.

Schwartz v. Sayah · filed 2010-04-13

Sayegh’s contention that the plaintiff engaged in sanctionable conduct during discovery is without merit (see CPLR 3126).

Section 3126 allows sanctions for failure to comply with discovery demands, but a court may deny them when the requested disclosure is irrelevant.

In re the Estate of Tortora · filed 2010-04-27

The record amply supports the Surrogate’s conclusion that the disclosure requested by the decedent’s father was irrelevant to the issues in this proceeding, including the matters of lack of support and abandonment raised by the mother pursuant to EPTL 4-1.4 (a) (1). Accordingly, the Surrogate did not improvidently exercise his discretion in denying the father’s motion to compel the decedent’s mother to respond to his outstanding discovery demands, or pursuant to CPLR 3126 to preclude the mother from testifying at trial and/or to strike the petition for failure to comply with those discovery demands (see generally Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531 [2007]; Aliano v Lusterman, 287 AD2d 473, 474 [2001]; Shapiro v Central Gen. Hosp., 171 AD2d 786 [1991]).

Section 3126 permits a lesser sanction for prolonged noncompliance with discovery orders when the conduct does not justify striking a pleading.

Socio v. 136 East 56th Street Owners, Inc. · filed 2010-06-17

Their exhibited pattern of noncompliance and their failure to account for their actions over a period of a year and a half warrant a penalty pursuant to CPLR 3126 (see Figdor v City of New York, 33 AD3d 560 [2006]). ... We believe that some lesser sanction, monetary or otherwise, is warranted, and we remand the matter for the court to determine the appropriate sanction (see Allstate Ins. Co. v Buziashvili, 71 AD3d 571 [2010]; see also Elias v City of New York, 71 AD3d at 507).

Section 3126 does not authorize discovery sanctions merely because documents produced may fail to prove a party’s claim; that is a failure of proof, not a willful failure to disclose.

Sparks Associates, LLC v. North Hills Holding Co. II, LLC · filed 2010-06-22

While the defendant contends that the financial documentation produced by the plaintiff does not establish its financial ability to purchase the property, a necessary element of a cause of action for specific performance (see Huntington Min. Holdings v Cottontail Plaza, 60 NY2d 997 [1983]; Internet Homes, Inc. v Vitulli, 8 AD3d 438 [2004]), such argument goes to a failure of proof, not a willful failure to disclose (see Sau Ting Cheng v Prime Design Realty, Inc., 44 AD3d 644 [2007]; Djukanovic v D’Amico, 40 AD3d 576 [2007]; Internet Homes, Inc. v Vitulli, 8 AD3d 438 [2004]; Ferrone v Tupper, 304 AD2d 524 [2003]; cf. CPLR 3126).

Section 3126 permits sanctions, including attorney’s fees, for disobeying a court’s discovery order.

Chan v. Society of Shaolin Temple, Inc. · filed 2010-11-03

The appointment of Jeffrey Kim, Esq. is made at the expense of Mr. Jiang personally. Imposition of appropriate sanctions, including attorney’s fees, is proper for disobeying a court’s order on discovery (see CPLR 3126; Keingarsky v Keingarsky, 145 AD2d 537 [2d Dept 1988]). The court directs that Mr. Jiang shall pay Mr. Kim’s fees and expenses.

Section 3126(3) permits a court to strike an answer as a discovery sanction; an order limited to trial testimony does not bar other evidence.

Harrison v. Bailey · filed 2010-12-14(3)

Had the Supreme Court intended to preclude Bailey from proffering any forms of evidence, as the plaintiff maintains, it could have done so in the order dated August 1, 2008, by specifically precluding all forms of evidence or by striking Bailey’s answer outright under CPLR 3126 (3).

Section 3126 permits a court to preclude evidence when a party repeatedly misses court-ordered discovery deadlines without a reasonable excuse.

Romeo v. Barrella · filed 2011-03-22

Here, because of the plaintiffs pattern of continued defaults, and her failure to offer a reasonable excuse, the Supreme Court properly inferred that her conduct was willful and contumacious, and providently exercised its discretion in precluding the plaintiff from introducing evidence at trial concerning the land map prepared by her surveyor (see Duncan v Hebb, 47 AD3d at 871; Green v Green, 32 AD3d at 899; Precise Ct. Reporting v Karten, 6 AD3d 412, 414-415 [2004]; cf. Matter of Blauman-Spindler v Blauman, 68 AD3d 1105, 1107 [2009]).

Section 3126 permits preclusion for disclosure failures, but striking a pleading requires a clear showing that failure to comply with court-ordered discovery was willful and contumacious.

Facey v. Silver Express Cab Corp. · filed 2011-09-20(2), (3)

As a sanction against a party who “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed,” a court may issue an order, inter alia, “prohibiting the disobedient party . . . from producing in evidence designated things or items of testimony” or “striking out pleadings” (CPLR 3126 [2], [3]). A court may invoke the drastic remedy of striking a pleading, however, only upon a clear showing that the failure to comply with court-ordered discovery was willful and contumacious (see Argo v Queens Surface Corp., 58 AD3d 656 [2009]; Paca v City of New York, 51 AD3d 991, 993 [2008]).

CPLR 3126 permits sanctions for wilful failure to comply with a disclosure order only when the order is sufficiently specific.

Trabanco v. City of New York · filed 2011-02-10

By its terms, CPLR 3126 permits a court to impose a range of sanctions upon a party’s wilful failure to comply with a disclosure order. The subject order, however, must be specific.

Section 3126 permits discovery penalties for willful refusal to obey a discovery order; a party cannot be penalized for disobeying an order the court has not issued.

Chen v. Yeung · filed 2011-09-09

CPLR 3126 provides for the imposition of penalties if a party wilfully refuses to obey a discovery order. ... In the instant matter, the court has not issued any discovery order and, hence, moving defendants cannot be found to have disobeyed a directive of the court.

CPLR 3126 leaves the nature and degree of a discovery sanction to the motion court’s discretion.

Mangru v. Schering Corp. · filed 2011-12-06

The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is within the discretion of the motion court (see Kihl v Pfeffer, 94 NY2d 118, 122-123 [1999]; Pirro Group, LLC v One Point St., Inc., 71 AD3d 654, 655 [2010]; Novick v DeRosa, 51 AD3d 885 [2008]).

Section 3126 gives courts discretion to deny dismissal or preclusion for discovery noncompliance, including when the party seeking preclusion failed to comply timely with a preclusion order.

Anderson v. Ariel Services, Inc. · filed 2012-03-20

The motion court did not improvidently exercise its discretion in denying defendants’ motions to the extent that they sought dismissal and/or preclusion (see CPLR 3126; see also Gross v Edmer Sanitary Supply Co., 201 AD2d 390, 391 [1994]). Preclusion is not warranted since the record reflects that defendants themselves did not comply timely with the first preclusion order (see e.g. DaimlerChrysler Ins. Co. v Seck, 82 AD3d 581, 582 [2011]).

A party seeking sanctions under CPLR 3126 must show that the responsible party acted willfully and contumaciously.

Falcone v. Karagiannis · filed 2012-03-06

To support a determination of sanctions pursuant to CPLR 3126, the moving party must demonstrate that the responsible party’s actions were “willful and contumacious” (Denoyelles v Gallagher, 40 AD3d 1027, 1027 [2007]; see Anthony v Anthony, 24 AD3d 694 [2005]).

A party who files a note of issue and certificate of readiness stating that discovery is complete waives a CPLR 3126 challenge to deficiencies in the opposing party’s discovery responses.

Marte v. City of New York · filed 2013-01-24

Discovery sanctions were inappropriate because plaintiff waived his right to challenge deficiencies in defendant’s responses to discovery orders by filing a note of issue and certificate of readiness representing that all discovery had been completed and that there were no outstanding discovery requests (see Rivera-Irby v City of New York, 71 AD3d 482, 482 [1st Dept 2010]; Escourse v City of New York, 27 AD3d 319 [1st Dept 2006]).

Section 3126 permits a court to strike an answer for failure to comply with discovery orders, and a court enforcing a conditional order based on prior delay and noncompliance need not make a new finding of willfulness.

Keller v. Merchant Capital Portfolios, LLC · filed 2013-02-21

However, the court erred, as a matter of law, in denying plaintiffs’ cross motion to enforce the conditional order striking Merchant’s answer since Merchant did not produce the specified materials within the identified time period, and did not establish both a reasonable excuse for its failure to timely produce the specified materials and the existence of a meritorious claim or defense (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 80 [2010]). In this context, where a conditional order had previously been entered based on the court’s findings that a party had caused delay and failed to comply with the court’s discovery orders, the court was not required to find that Merchant’s conduct in failing to comply with the conditional order was “willful” (id. at 82-83).

CPLR 3126 permits a discovery sanction for wilful and contumacious avoidance of a deposition when the sanction sufficiently mitigates the resulting prejudice.

Lawrence v. Miller · filed 2013-05-23

Finally, the record shows that the court providently exercised its discretion in imposing a discovery sanction for the widow’s wilful and contumacious conduct in avoiding her deposition. The sanction imposed sufficiently mitigated the prejudice arising from this misconduct (see CPLR 3126; see generally Sage Realty Corp. v Proskauer Rose, 275 AD2d 11, 17-18 [1st Dept 2000], lv dismissed 96 NY2d 937 [2001]).

CPLR 3126 permits a monetary sanction to compensate counsel for time and costs caused by a party’s failure to comply fully and promptly with court-ordered disclosure.

Knoch v. City of New York · filed 2013-08-07

Consequently, a monetary sanction in the sum of $2,500 is warranted to compensate the plaintiffs counsel for the time expended and costs incurred in connection with the defendant’s failure to fully and timely comply with court-ordered disclosure and discovery requests (see CPLR 3126; O’Neill v Ho, 28 AD3d 626, 627 [2006]).

CPLR 3126 permits a court to impose a just sanction, including striking a pleading, when a party destroys evidence that should have been disclosed.

Johnson v. Edwards · filed 2013-09-18

If a court finds that a party destroyed evidence that ought to have been disclosed, the court may make such orders with regard to the failure or refusal as are just, including striking out pleadings (CPLR 3126).

Section 3126(3) permits a court to preclude a party from asserting a defense when it willfully fails to comply with court-ordered discovery.

Jones v. Lefrance Leasing Ltd. Partnership · filed 2013-10-30(3)

Therefore, in determining the plaintiffs’ cross motion, inter alia, to strike Alliance’s answer, the court providently exercised its discretion in precluding Alliance from Maiming that it did not have prior notice of the alleged defective conditions in the subject elevator (see CPLR 3126 [3]; Dokaj v Ruxton Tower Ltd. Partnership, 91 AD3d at 814; Weber v Harley-Davidson Motor Co., Inc., 58 AD3d at 722).

Section 3126(1) permits a court to resolve an issue against a party as a sanction for failing to comply with a disclosure order.

CASON, TREMAIN v. SMITH, III, KIRBY SY · filed 2014-09-26(1)

Instead, we impose the lesser sanction of resolving the issue of negligence in plaintiff’s favor (see CPLR 3126 [1]; Beatty v First Atl. Hous. Corp., 209 AD2d 658, 660), and directing Werner to pay the sum of $1,500 to plaintiff’s counsel (see L&L Auto Distribs. & Suppliers Inc. v Auto Collection, Inc., 85 AD3d 734, 736; Adzer v Rudin Mgt. Co., Inc., 50 AD3d 1070, 1072).

CPLR 3126 (1) permits a court to resolve an issue against a party as a sanction for failing to comply with a disclosure order.

Cason v. Smith · filed 2014-09-26(1)

Instead, we impose the lesser sanction of resolving the issue of negligence in plaintiffs favor (see CPLR 3126 [1]; Beatty v First Atl. Hous. Corp., 209 AD2d 658, 660 [1994]), and directing Werner to pay the sum of $1,500 to plaintiffs counsel (see L&L Auto Distribs. & Suppliers Inc. v Auto Collection, Inc., 85 AD3d 734, 736 [2011]; Adzer v Rudin Mgt. Co., Inc., 50 AD3d 1070, 1072 [2008]).

CPLR 3126 permits a court to deny sanctions for destroyed evidence when the conduct was not willful and the opposing party was not particularly prejudiced.

DyervCityofAlbany · filed 2014-10-16

Hence, Supreme Court did not abuse its discretion in deciding not to impose any sanction against defendant pursuant to CPLR 3126 (see O'Connor v Syracuse Univ., 66 AD3d at 1191; Hartford Fire Ins. Co. v Regenerative Bldg. Constr., 271 AD2d at 864; see also Awon v Harran Transp. Co., Inc., 69 AD3d 889, 890 [2010]).

Section 3126 leaves the choice of discovery penalty generally to the trial court’s discretion, including a conditional order striking pleadings for repeated failures to obey discovery orders.

Gutman v. Cabrera · filed 2014-10-29

The nature and degree of a penalty to be imposed on a motion pursuant to CPLR 3126 is a matter generally left to the discretion of the Supreme Court (see Harris v City of New York, 117 AD3d 790 [2014]; see also Apladenaki v Greenpoint Mtge. Funding, Inc., 117 AD3d 976 [2014]; Fishbane v Chelsea Hall, LLC, 65 AD3d 1079, 1081 [2009]).

Section 3126 permits striking a pleading or precluding evidence for discovery failures only when the failure is clearly willful and contumacious.

Palmieri v. Piano Exchange, Inc. · filed 2015-01-14

However, the drastic remedy of striking a pleading or even precluding evidence pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious (see Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 210; Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 739 [2012]; Commisso v Orshan, 85 AD3d 845 [2011]).

CPLR 3126 permits striking a pleading or precluding evidence for a discovery failure only upon a clear showing of willful and contumacious noncompliance.

MacKenzie v. City of New York · filed 2015-02-18

Here, the plaintiff failed to establish that the defendant did not comply with a court order directing discovery or that the defendant willfully and contumaciously failed to respond to her discovery demands (see Neenan v Quinton, 110 AD3d at 968; Korchak v Santana, 102 AD3d 928 [2013]). Accordingly, the Supreme Court properly denied the plaintiffs motion to strike the defendant’s answer or to preclude the defendant from offering certain evidence at trial.

Section 3126 allows preclusion as a sanction for a discovery violation, but dismissal may be an abuse of discretion when preclusion is appropriate.

MAGGIO, DOMENIC v. DOUGHTERY, RONALD JOHN · filed 2015-07-02

The motions and cross motion sought dismissal as a sanction for a discovery violation rather than summary judgment dismissing the complaint. We conclude that, under the circumstances of this case, preclusion was the appropriate sanction and that the court therefore abused its discretion in dismissing the complaint (see Breen v Laric Entertainment Corp., 2 AD3d 298, 300; see also CPLR 3126; cf. Tartan Textile Servs., Inc. v. St. Joseph’s Hosp. Health Ctr., 59 AD3d 955, 956).

CPLR 3126 permits preclusion for a discovery violation, but dismissal is an abuse of discretion when preclusion is the appropriate sanction.

Maggio v. Doughtery · filed 2015-07-02

We conclude that, under the circumstances of this case, preclusion was the appropriate sanction -and that the court therefore abused its discretion in dismissing the complaint (see Breen v Laric Entertainment Corp., 2 AD3d 298, 300 [2003]; see also CPLR 3126; cf. Tartan Textile Servs., Inc. v St. Joseph’s Hosp. Health Ctr., 59 AD3d 955, 956 [2009]).

A party opposing a motion to strike a complaint for failure to comply with discovery demands can show a potentially meritorious opposition if the movant has not clearly shown that the failure was willful and contumacious.

Lyubomirsky v. Lubov Arulin, PLLC · filed 2015-02-04

In addition, the plaintiff demonstrated a potentially meritorious opposition to the motion on the ground that the defendants failed to make a clear showing that the plaintiffs failure to comply with the defendants’ discovery demands was willful and contumacious (see Oller v Liberty Lines Tr., Inc., 111 AD3d at 904; Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 739 [2012]; Moray v City of Yonkers, 76 AD3d 618, 619 [2010]).

Section 3126 permits a court to deny a request to strike a pleading or preclude proof when the requesting party fails to clearly show willful and contumacious discovery noncompliance.

Kanic Realty Associates, Inc. v. Suffolk County Water Authority · filed 2015-07-22

Here, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff’s motion which was to strike the defendant’s answer or preclude the defendant from submitting certain proof. The plaintiff failed to make a clear showing that the defendant engaged in a willful and contumacious pattern of noncompliance in failing to produce certain witnesses (see Campbell v New York City Tr. Auth., 109 AD3d 455, 456 [2013]; Orgel v Stewart Tit. Ins. Co., 91 AD3d at 923).

Section 3126 gives courts discretion to decline monetary sanctions for a missed court-ordered deposition when the circumstances do not warrant them.

Dabrowski v. ABAX Inc. · filed 2016-01-12

Under the circumstances, the motion court providently exercised its discretion in declining to impose a monetary sanction.

A party who waits until after trial to seek CPLR 3126 sanctions waives a claim that an opponent failed to meet disclosure obligations.

Flanagan v. Wolff · filed 2016-02-10

Contrary to the appellant’s contention, by failing to move for sanctions pursuant to CPLR 3126 until after trial, the appellant waived his claim that Juvet had failed to meet his disclosure obligations (see K-F/X Rentals & Equip., LLC v FC Yonkers Assoc., LLC, 131 AD3d 945 [2015]; Iscowitz v County of Suffolk, 54 AD3d 725 [2008]; Brown v Veterans Transp. Co., 170 AD2d 638 [1991]; see also Kagan v Morano, 102 AD2d 844 [1984]).