N.Y. C.P.L.R. § 3126

Section 3126(3) gives courts discretion to decline to strike an answer when a defendant fails to appear for a court-ordered deposition.

Masik v. Lutheran Medical Center · filed 2012-02-14(3)

Despite the failure of the defendant Nawaiz Ahmad to appear for a court-ordered deposition, the Supreme Court providently exercised its discretion in declining to impose the drastic remedy of striking his answer (see CPLR 3126 [3]; Deans v Jamaica Hosp. Med. Ctr., 64 AD3d 744 [2009]; see also Pirro Group, LLC v One Point St., Inc., 71 AD3d 654 [2010]; Novick v DeRosa, 51 AD3d 885 [2008]).

Section 3126 permits striking an answer when a party refuses to obey a disclosure order or wilfully fails to disclose information the court finds should have been disclosed.

Pezhman v. Department of Education · filed 2012-05-15

Defendants’ alleged harassment of plaintiff is not a ground for striking their answer; rather, striking an answer is an appropriate remedy where a party refuses to obey a disclosure order or wilfully fails to disclose information which the court finds should have been disclosed (CPLR 3126).

A CPLR 3126 order striking an answer can also strike cross claims when the circumstances show the order was intended to reach them.

Boorman v. City of New York · filed 2011-11-30

Cilio teaches that one must look to the circumstances giving rise to an order striking an answer to determine whether the cross claims are also stricken. The relevant circumstances are whether the codefendants supported the motion to strike the answer that was granted; whether the codefendants would be prejudiced if the cross claims were to proceed; and whether the striking of the answer was based on a failure to provide discovery which also related to codefendants. ... Given the particular circumstances surrounding the issuance of Justice Mills’s order, this court agrees that her prior conditional order striking NYCTA’s answer was intended to strike the cross claims against NYCTA’s codefendants.

CPLR 3126 does not warrant striking an answer when the defendant complied with a conditional discovery order and the plaintiff failed to show willful and contumacious noncompliance.

Pierre v. 100 Corp. · filed 2012-07-25

The Supreme Court should not have granted that branch of the plaintiffs’ motion which was pursuant to CPLR 3126 to strike the answer of the defendants 100 Corp., 201 Builders Corp., and Menashe Shlomo (hereinafter collectively the appellants). Contrary to the Supreme Court’s determination, the record demonstrates that the appellants complied with a conditional order of preclusion dated July 15, 2009, by serving a bill of particulars and responsive documents, and by producing the appellant Menashe Shlomo, who is an officer of both corporate appellants, for a deposition.

Section 3126(3) gives courts discretion to deny a motion to strike a defendant’s answer as a disclosure sanction.

Pipelias v. City of New York · filed 2012-10-03(3)

The Supreme Court, however, did not improvidently exercise its discretion in denying the plaintiff’s motion pursuant to CPLR 3126 to strike the answer of the defendant P&T Contracting Corp.

Striking an answer under CPLR 3126 requires a showing that the failure to produce documents was willful, contumacious or in bad faith.

Fields v. First Liberty Insurance · filed 2012-11-01

The drastic remedy of striking the defendant’s answer pursuant to CPLR 3126 is not warranted here, as plaintiff has not shown that the defendant’s failure to produce documents responsive to the second notice was willful, contumacious or in bad faith (see Rini v Blanck, 74 AD3d 941 [2d Dept 2010]; Kesar v Green Ridge Enters. Corp., 30 AD3d 471 [2d Dept 2006]).

CPLR 3126 permits a court to conditionally strike an answer when a defendant repeatedly fails to attend court-ordered depositions without a reasonable excuse.

Aronov v. Shimonov · filed 2013-04-10

The Supreme Court providently exercised its discretion in conditionally granting that branch of the plaintiffs motion which was pursuant to CPLR 3126 to strike the answer of the defendant Hers Pasternak unless he appeared for a deposition by a date certain.

A binding, so-ordered stipulation arranging a deposition can make striking an answer under CPLR 3126 improper.

Daibes v. Kahn · filed 2014-04-30

In light of the agreement between the plaintiff and Kahn in the so-ordered stipulation, which was signed by the court on April 18, 2013, the Supreme Court improperly granted the plaintiffs motion pursuant to CPLR 3126 to strike Kahn’s answer.

Section 3126 does not warrant striking an answer for a discovery dispute when the conduct does not support an inference of willful and contumacious noncompliance.

Vaccaro v. Weinstein · filed 2014-05-28

The extreme sanction of striking Weinstein’s answer was not warranted by the conduct herein, which does not support an inference of willful and contumacious conduct (see Pinto v Tenenbaum, 105 AD3d 930, 931 [2013]; Boeke v Our Lady of Pompei School, 73 AD3d 825, 826 [2010]; Sullivan v Nigro, 48 AD3d 454 [2008]; cf. Reid v Schoenthal, 288 AD2d 203, 204 [2001]).

CPLR 3126 permits a court to strike a defendant’s answer for failing to comply with a conditional order to appear for a deposition.

Estate of Alston v. Ramseur · filed 2015-01-21

Accordingly, the Supreme Court properly granted the plaintiffs motion pursuant to CPLR 3126 to strike the defendant’s answer for her failure to comply with, inter alia, the conditional order, and to set the matter down for a hearing on the assessment of damages.

CPLR 3126 does not warrant striking an answer for spoliation when the movant fails to show that it cannot establish its claims without the missing evidence.

Varone v. Middle Country Central School District · filed 2015-02-18

The Supreme Court providently exercised its discretion in denying the plaintiffs’ motion pursuant to CPLR 3126 to strike the answer on the ground of spoliation of evidence, with leave to renew the motion to the extent of requesting the trial court to give a jury charge addressing the issue. As the Supreme Court properly concluded, the plaintiffs did not meet their burden of showing that they could not establish their causes of action without the playground inspection sheets (see Dutchess Truck Repair, Inc. v Boyce, 120 AD3d 543 [2014]).

Striking an answer under CPLR 3126 is a drastic remedy that requires a sufficient showing of entitlement.

Miller v. Western Beef Properties, Inc. · filed 2015-05-20

Moreover, the plaintiff did not make the requisite showing of entitlement to the drastic remedy of striking the defendants’ answer (see Pinto v Tenenbaum, 105 AD3d 930, 931 [2013]), or to depose additional witnesses (see CPLR 3101 [a]; cf. Giordano v New Rochelle Mun. Hous. Auth., 84 AD3d 729 [2011]).

CPLR 3126 gives courts discretion to deny a request to strike an answer for spoliation when the movant has not shown that the loss leaves it without a means to prove its case.

Hoffman v. Medical Depot, Inc. · filed 2016-08-24

Here, the Supreme Court providently exercised its discretion in denying the plaintiffs’ motion pursuant to CPLR 3126 to strike the answer of the defendant All Pro Medical Supplies, Inc., for spoliation of evidence without prejudice to renew since they failed to establish that, at this point in the litigation, they have been left without a means to establish their case ... Iannucci v Rose, 8 AD3d 437, 438 [2004]).

Striking an answer under CPLR 3126 is unwarranted when the delay caused no shown prejudice, the defendant has complied with prior orders, and a penalty has already been imposed.

Doino v. RPS Corp. · filed 2016-12-15(3)

We agree with the motion court that the drastic remedy of striking defendant’s answer, pursuant to CPLR 3126, was not warranted.

CPLR 3126 permits striking an answer for failure to comply with discovery demands when that failure is clearly shown to be willful and contumacious.

Lantigua v. Goldstein · filed 2017-04-26

Further, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff’s motion which was pursuant to CPLR 3126 to strike the Goldstein defendants’ answer. The drastic remedy of striking an answer is inappropriate absent a clear showing that a defendant’s failure to comply with discovery demands is willful and contumacious (see Zubaidi v Hasbani, 136 AD3d 708 [2016]; JPMorgan Chase Bank, N.A. v New York State Dept. of Motor Vehs., 119 AD3d 903 [2014]).

CPLR 3126 permits striking an answer only when the moving party clearly shows that noncompliance was willful, contumacious or in bad faith.

Lee v. 13th St. Entertainment LLC · filed 2018-05-24

A court may strike an answer only when the moving party establishes "a clear showing that the failure to comply is willful, contumacious or in bad faith" ( Palmenta v Columbia Univ. , 266 AD2d 90, 91 [1st Dept 1999]). Here, it was improper for the motion court to strike defendants' answer because plaintiff failed to establish that defendants' conduct was willful, contumacious or in bad faith.

CPLR 3126 permits a court to conditionally strike a party's answer for repeated failure to comply with disclosure requests and court orders.

People v. New York City Hous. Auth. · filed 2019-02-27

Given the defendant's repeated failures to comply with the disclosure requests of the plaintiffs and the orders of the court with respect to item 2 of the plaintiffs' notice of discovery and inspection, and the extensive motion practice engendered by that noncompliance, the Supreme Court did not improvidently exercise its discretion in conditionally striking the defendant's answer ( see generally CPLR 3126; Kihl v Pfeffer , 94 NY2d 118, 122; Brannigan v Christie Overhead Door , 144 AD3d 959, 960; Legarreta v Neal , 108 AD3d 1067, 1068-1069).

Section 3126 permits striking an answer for discovery misconduct only upon a showing of willful or contumacious conduct.

Peterson v. Estate of John Rozansky · filed 2019-04-03

We also agree with the Supreme Court that there was no showing of any willful or contumacious conduct on the part of Rozansky or the estate, and therefore the plaintiffs were not entitled to an order striking the defendant's answer ( see CPLR 3126, 2308; Dimoulas v Roca , 120 AD3d 1293, 1295).

When a defendant’s answer is struck for failure to comply with court-ordered discovery, the defendant admits the complaint’s traversable allegations, including liability.

Mears v. Long · filed 2019-06-05

Upon the striking of their answer for failure to comply with court-ordered discovery, the defendants admitted all traversable allegations in the complaint, including the basic allegation of liability ( see Rokina Opt. Co. v Camera King , 63 NY2d 728, 730; [*2]Shah v Oral Cancer Prevention Intl., Inc. , 138 AD3d 722, 724; Jihun Kim v S & M Caterers, Inc. , 136 AD3d 755, 756).

CPLR 3126(3) permits a court to strike an answer when a party willfully fails to comply with disclosure obligations.

Carmona v. HUB Props. Trust · filed 2020-09-23(3)

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 Corex-SPA v Janel Group of N.Y., Inc. , 156 AD3d 599, 601). ... Although J. Duchi's counsel was able to contact her client, the client nonetheless willfully refused to comply with discovery. Under these circumstances, the Supreme Court did not improvidently exercise its discretion in granting those branches of the motion and the cross motion which were to strike J. Duchi's answer.

An order under CPLR 3126 striking an answer is equivalent to a default in answering, so CPLR 3215 governs the plaintiff’s recovery.

Freeport Plaza Realty, LLC v. Freeport Moon, Inc. · filed 2022-05-04

"Entry of an order pursuant to CPLR 3126 striking an answer is the equivalent of a default in answering" ( Fappiano v City of New York , 5 AD3d 627, 628; see Rokina Opt. Co. v Camera King , 63 NY2d 728; Reynolds Sec. v Underwriters Bank & Trust Co. , 44 NY2d 568; Jones v Corley , 35 AD3d 381), "and a plaintiff's right to recover upon a defendant's default in answering is governed by CPLR 3215" ( Jones v Corley , 35 AD3d at 381; see Fappiano v City of New York , 5 AD3d at 628).

CPLR 3126 does not warrant striking a party's answer for failing to produce documents that are not in the party's possession or do not exist.

Christopulos v. Christopulos · filed 2022-07-27

Here, it is evident from Spyreas's inartful pro se response to the plaintiff's discovery demands that his failure to supply responsive documentation to some of those demands was because such documents were either not in his possession or do not exist. Consequently, the Supreme Court improvidently exercised its discretion in granting the plaintiff's motion to strike Spyreas's answer on the ground that Spyreas's discovery responses were inadequate and noncompliant.

CPLR 3126 does not warrant striking an answer when disclosure failures are not egregious and defendants largely cure them before or in response to the first sanctions motion.

Lane v. City of New York · filed 2022-11-15

However, defendants largely became current on their disclosure obligations prior to, or in response to plaintiff's motion, which was the first CPLR 3126 motion made in the action, and review of the record reveals that defendants' failures were not egregious and thus, did not warrant the "drastic remedy" of striking the answer ( see Henderson-Jones v City of New York , 87 AD3d 498, 504 [1st Dept 2011]; see Forbes v New York City Tr. Auth. , 88 AD3d 546, 546 [1st Dept 2011]; Reidel v Ryder TRS, Inc. , 13 AD3d 170, 171 [1st Dept 2004]).

Section 3126 permits a court to deny a request to strike an answer when the defendant has provided the relevant documents in its possession and control and an affidavit describing its search.

Patterson v. Beth Abraham Nursing Home · filed 2023-03-07

To the extent plaintiff's motion sought relief pursuant to CPLR 3126, the court providently exercised its discretion in denying the request to strike defendant's answer because defendant had satisfied its obligation to provide all relevant documents within its possession and control and an affidavit concerning its search for responsive documents ( see Youwanes v Steinbrech , 193 AD3d 492, 492 [1st Dept 2021]).

CPLR 3126 permits a court to strike a party's answer for destroying evidence crucial to the opposing party's case.

Fata v. Heskel's Riverdale, LLC · filed 2024-01-18

Accordingly, Supreme Court providently exercised its discretion in striking defendant's answer rather than imposing the lesser sanction of an adverse inference charge ( see Sage Realty Corp. v Proskauer Rose , 275 AD2d 11, 17 [1st Dept 2000] ["courts have broad discretion that must not be disturbed absent [*2]clear abuse to impose sanctions under CPLR 3126 when a party intentionally, contumaciously or in bad faith . . . destroys evidence prior to an adversary's inspection"] [internal quotation marks omitted]; cf. VOOM HD Holdings , 93 AD3d at 47).

Section 3126(3) permits a court to strike an answer for discovery noncompliance, but the court may deny that remedy when the moving parties do not show that the requested items were in the party's possession or control.

Pettinato v. EQR-Rivertower, LLC · filed 2024-06-27(3)

Supreme Court providently exercised its discretion in denying the motions to strike Owner's answer ( see Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc. , 11 NY3d 843, 845 [2008]; 148 Magnolia, LLC v Merrimack Mut. Fire Ins. Co. , 62 AD3d 486, 487 [1st Dept 2009]; see also CPLR 3126[3]). ... Neither plaintiffs nor the EQR defendants offered evidence that Owner had or controlled the discovery items that Owner stated it did not possess.

CPLR 3126 permits striking an answer for discovery failures, but a slightly late response cured before the motion does not warrant that sanction when the failures are not sufficiently egregious.

Lamerique v. Columbia Univ. · filed 2024-10-03

Under the circumstances, Supreme Court providently exercised its discretion in denying plaintiff's CPLR 3126 motion to strike the answer. Although defendants' response to plaintiff's discovery demands was slightly belated, they became current on their disclosure obligations before plaintiff's motion, and any failures were not sufficiently egregious to warrant the drastic remedy of striking the answer ( see Lane v City of New York , 210 AD3d 502, 503 [1st Dept 2022]).

An order striking an answer under CPLR 3126 is equivalent to a default in answering and does not make a nondefaulting party's appeal academic.

Lewis v. Reeves · filed 2025-03-12(2)

"Entry of an order pursuant to CPLR 3126 striking an answer is the equivalent of a default in answering" ( Freeport Plaza Realty, LLC v Freeport Moon, Inc. , 205 AD3d 685, 686 [internal quotation marks omitted]; see Jones v Corley , 35 AD3d 381, 381). Accordingly, the order dated May 30, 2024, does not render U.S. Bank's appeal academic.

Section 3126 allows a court to strike an answer for willful failure to disclose.

Benedict v. Pray · filed 1987-03-26

The plaintiffs cross-move to compel the defendant to deliver a copy of the report of the dentist who examined the plaintiff on his behalf and have also moved by separate notice of motion, pursuant to CPLR 3126, to strike the defendant’s answer for his willful failure to respond to certain discovery demands. ... The plaintiffs’ motion to strike the defendant’s answer for willful failure to disclose is denied.

Section 3126(3) permits striking an affirmative defense for discovery noncompliance only upon a clear showing that the failure was willful and contumacious.

Maffai v. County of Suffolk · filed 2007-01-23(3)

Accordingly, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiffs’ motion which was, in effect, to strike the appellant’s eighth affirmative defense.

CPLR 3126 permits a court to strike an answer for failure to comply with a disclosure order when the conduct is willful and contumacious.

Maignan v. Nahar · filed 2007-02-13

To invoke the drastic remedy of striking an answer, it must be shown that a defendant’s failure to comply with a disclosure order was the result of willful and contumacious conduct (see CPLR 3126; Bates v Baez, 299 AD2d 382 [2002]). ... Under the circumstances of this case, the Supreme Court providently exercised its discretion in conditionally striking the defendant’s answer.

Section 3126 permits a court to strike an answer for failure to comply with disclosure orders when the conduct is willful and contumacious.

Casey v. Casey · filed 2007-04-10

The drastic remedy of striking an answer requires a showing that a defendant’s failure to comply with a disclosure order was the result of willful and contumacious conduct (see CPLR 3126; Bates v Baez, 299 AD2d 382 [2002]).

CPLR 3126 permits striking an answer for failure to provide disclosure when there is a clear showing that the failure was willful and contumacious.

Barnes v. City of New York · filed 2007-09-25

In the instant case, the drastic remedy of striking the answer of the defendant City of New York was not warranted because there was no clear showing that its failure to provide the subject disclosure was willful and contumacious (see CPLR 3126; Gateway Tit. & Abstract, Inc. v Your Home Funding, Inc., 40 AD3d 919 [2007]; Tine v Courtview Owners Corp., 40 AD3d 966 [2007]; Torres v Lowinger, 12 AD3d 363 [2004]).

Section 3126 permits a court to strike an answer when a party fails without reasonable excuse to comply with discovery orders.

Ziskin Law Firm, LLP v. Bi-County Electric Corp. · filed 2007-09-25

The record demonstrates that the defendants failed without reasonable excuse to comply with multiple discovery orders requiring them to appear for a deposition and to provide substantive responses to proper interrogatories, and that the Supreme Court providently exercised its discretion in granting the plaintiffs motion to strike the answer and for other relief pursuant to CPLR 3126 (see Royal Caterers, LLC v Marine Midland, 8 AD3d 549 [2004]; Alizio v Alizio, 300 AD2d 515 [2002]; Nowak v Veira, 289 AD2d 383 [2001]).

CPLR 3126 permits a court to decline to strike an answer when the party ultimately complies with court-ordered discovery and its conduct was not willful and contumacious.

Sau Ting Cheng v. Prime Design Realty, Inc. · filed 2007-10-02

The Supreme Court providently exercised its discretion in declining to strike the answer of the defendant Prime Design Realty, Inc., in light of its ultimate compliance with court-ordered discovery, and because its conduct was not willful and contumacious (see CPLR 3126; Resnick v Schwarzkopf, 41 AD3d 573 [2007]; Lawrence v City of New York, 252 AD2d 482 [1998]).

Section 3126 permits a court to strike an answer when repeated failure to comply with court-ordered discovery supports a finding of willful and contumacious conduct.

Duncan v. Hebb · filed 2008-01-29

Accordingly, the court properly inferred that the defendant’s conduct was willful and contumacious, and providently exercised its discretion in granting that part of the plaintiffs’ motion which was to strike the defendant’s answer.

Section 3126 allows a court to strike an answer for failure to comply with discovery demands when the moving party clearly shows willful and contumacious conduct.

Pacheco v. New York City Housing Authority · filed 2008-02-13

Contrary to the plaintiffs contentions, the Supreme Court did not improvidently exercise its discretion in refusing to strike the defendant’s answer as a sanction under CPLR 3126 (see Byrne v City of New York, 301 AD2d 489, 490 [2003]; Cianciolo v Trism Specialized Carriers, 274 AD2d 369, 370 [2000]; Vancott v Great Atl. & Pac. Tea Co., 271 AD2d 438 [2000]). The plaintiff failed to make a clear showing that the failure to comply with discovery demands was willful and contumacious (see Goldstein v Kingsbrook Jewish Med. Ctr., 39 AD3d 816, 817 [2007]).

Section 3126 permits a court to deny a motion to strike a defendant’s answer for failure to appear for deposition.

Glazer v. Choong-Hee Lee · filed 2008-05-27

The Supreme Court properly denied the plaintiffs motion to strike the answer of the Lee defendants (see CPLR 3126; Thomas v McGuire Serv. Corp., 251 AD2d 148 [1998]).

Section 3126 permits striking a defendant’s answer for a discovery violation only upon a clear showing that the failure to comply was willful and contumacious.

Paca v. City of New York · filed 2008-05-27

The plaintiffs’ contention that the Supreme Court improperly denied their motion, inter alia, to strike the defendants’ answer is without merit (see CPLR 3126). Striking a defendant’s answer is a drastic remedy that is “inappropriate absent a clear showing that the failure to comply with discovery demands was willful and contumacious” (Brandes v North Shore Univ. Hosp., 22 AD3d 778 [2005], quoting Jenkins v City of New York, 13 AD3d 342 [2004]).

Section 3126 does not warrant striking an answer for a discovery delay without a showing of willful or contumacious conduct.

Jenkins v. Proto Property Services, LLC · filed 2008-09-09

Here, the plaintiff failed to demonstrate that the defendants’ delay in producing the subject surveillance tape was the product of willful and contumacious conduct (see Pascarelli v City of New York, 16 AD3d at 473; Vogel v Benwil Indus., 267 AD2d 232 [1999]).

CPLR 3126 allows a complaint to be struck for failure to comply with discovery demands when the failure is clearly shown to be willful and contumacious.

Arimont v. Iwakawa · filed 2009-03-17

Contrary to the defendant’s contention, the Supreme Court did not improvidently exercise its discretion by, in effect, denying that branch of his motion which was to strike the plaintiffs complaint for failure to comply with discovery demands, as a sanction under CPLR 3126 (see Pacheco v New York City Hous. Auth., 48 AD3d 534 [2008]). The defendant failed to make a clear showing that the failure to comply with discovery demands was willful and contumacious (see Goldstein v Kingsbrook Jewish Med. Ctr., 39 AD3d 816 [2007]).

Striking an answer under CPLR 3126 requires a clear showing that the defendant willfully and contumaciously defied a discovery order or withheld relevant documents.

Filoramo v. City of New York · filed 2009-04-14

The plaintiffs, however, failed to make a clear showing that the respondent willfully and contumaciously defied the directive of the preliminary conference order to produce all accident reports, or willfully and contumaciously withheld relevant documents ... Accordingly, that branch of the plaintiffs’ motion which was pursuant to CPLR 3126 to strike the respondent’s answer was properly denied.

Striking an answer under CPLR 3126 requires a clear showing that failure to comply with a conditional discovery order was willful, contumacious or in bad faith.

Molyneaux v. City of New York · filed 2009-07-02

The court improperly granted plaintiffs’ CPLR 3126 motion in the absence of the required affirmation by their attorney that the latter had conferred with defendants’ attorney in a good faith effort to resolve the issues raised by the motion (22 NYCRR 202.7 [a] [2]; see Cerreta v New Jersey Tr. Corp., 251 AD2d 190 [1998]). In addition, there was also no clear showing that any failure by the City to comply with the conditional order was willful, contumacious or in bad faith (see Reidel v Ryder TRS, Inc., 13 AD3d 170, 171 [2004]).

Section 3126 permits striking an answer for willful failure to comply with discovery orders; an affidavit claiming ordered records are unavailable must document a thorough, good-faith search.

Henderson-Jones v. City of New York · filed 2011-08-25(3)

An affidavit regarding the unavailability of documents that are the subject of a discovery order must document a thorough search conducted in good faith. ... Here, the affidavits submitted by defendants reveal that the efforts that defendants maintain they took to ascertain the names of the officers were so unimaginative and lacking in diligence that it is hard to characterize them as anything other than willfully designed to thwart plaintiff.

Section 3126(3) permits striking an answer for failure to comply with discovery demands only upon a clear showing of willful, contumacious, or bad faith conduct.

Laskin v. Friedman · filed 2011-12-06(3)

The Supreme Court providently exercised its discretion in denying that branch of the plaintiffs motion which was pursuant to CPLR 3126 (3) to strike the defendants’ answer for failure to comply with discovery demands.

Section 3126(3) permits a court to conditionally strike a defendant’s answer for willful and contumacious failure to comply with court-ordered discovery.

Sadoyan v. Castro · filed 2013-01-09(3)

Actions should be resolved on the merits when possible, but a court may strike a defendant’s answer upon a clear showing that the defendant willfully and contumaciously failed to comply with court-ordered discovery (see CPLR 3126 [3]; Rawlings v Gillert, 78 AD3d 806, 807 [2010]; Giano v Ioannou, 78 AD3d 768, 770-771 [2010]; Carabello v Luna, 49 AD3d 679, 679-680 [2008]).

A court may deny a motion to strike an answer under CPLR 3126 when the movant has the disputed documents, shows no prejudice, and fails to establish willful nonproduction.

Engelke v. Brown Rudnick Berlack Israels LLP · filed 2013-11-12

Plaintiff further fails to establish that any failure to produce the emails was willful (CPLR 3126).

Striking an answer under CPLR 3126 for failure to comply with a discovery demand requires a clear showing that the failure was willful or contumacious.

Scorzari v. Pezza · filed 2013-11-27

...the plaintiff failed to make a clear showing that the defendants’ failure to comply with the discovery demand was willful or contumacious, as required to support the drastic remedy of striking an answer (see Pinto v Tenenbaum, 105 AD3d 930, 931 [2013]; Laskin v Friedman, 90 AD3d 617, 617-618 [2011]; Weber v Harley-Davidson Motor Co., Inc., 58 AD3d 719, 722 [2009]).

CPLR 3126 permits a court to strike an answer for failure to comply with discovery demands when there is a clear showing that the failure was willful or contumacious.

Main Omni Realty Corp. v. Matus · filed 2015-01-14

Contrary to the plaintiffs’ contention, the Supreme Court providently exercised its discretion in denying that branch of their motion which was pursuant to CPLR 3126 to strike the defendant’s answer, since there was no clear showing that the defendant’s failure to comply with discovery demands was willful or contumacious (see Perla v Daytree Custom Bldrs., Inc., 119 AD3d 758 [2014]).

Section 3126 permits a court to strike an answer for a discovery violation; striking it is unwarranted when no violation occurred.

Nyadzi v. Ki Chul Lee · filed 2015-06-30

The court providently exercised its discretion in declining to strike the answer of defendants, as there was no discovery violation (see CPLR 3126; Fish & Richardson, P.C. v Schindler, 75 AD3d 219, 220 [1st Dept 2010]).

An answer should not be struck under CPLR 3126 for failure to comply with discovery demands without a clear showing that the failure was willful or contumacious.

Matter of Edrich v. MMAL Corp. · filed 2015-12-16

The petitioner contends that the Supreme Court improperly denied that branch of his motion which was to strike the respective answers of MMAL and Festinger pursuant to CPLR 3126. This contention is without merit, since there was no clear showing that the purported failure of MMAL and Festinger to comply with discovery demands was willful or contumacious (see Dutchess Truck Repair, Inc. v Boyce, ... 120 ... *936 AD3d 543 [2014]; Perla v Daytree Custom Bldrs., Inc., 119 AD3d 758 [2014]).

CPLR 3126 permits striking an answer for failure to comply with discovery demands only upon a clear showing that the failure was willful and contumacious.

Zubaidi v. Hasbani · filed 2016-02-03

The Supreme Court improvidently exercised its discretion in granting that branch of the plaintiffs’ cross motion which was pursuant to CPLR 3126 to strike the answer of the defendant Jamil Hasbani, also known as Jimmy Hasbani, for failure to comply with discovery demands. ... Thus, there was no clear showing that his failure to produce a written contract was willful or contumacious.

Section 3126 permits a court to strike a defendant’s answer for willful and contumacious failure to comply with discovery orders.

Ithilien Realty Corp. v. 176 Ludlow, LLC · filed 2016-05-24

The court properly granted the motion to strike defendant’s answer inasmuch as the record demonstrates that defendant engaged in willful and contumacious conduct by its failure to comply with the discovery orders and directives of the court and special referee (see CPLR 3126; see e.g. Suffolk P.E.T. Mgt., LLC v Anand, 105 AD3d 462 [1st Dept 2013]).

CPLR 3126 permits a court to strike an affirmative defense for willful, deliberate, contumacious discovery noncompliance when the sanction is tailored to the abuse.

Crooke v. Bonofacio · filed 2017-02-14

The court properly exercised its discretion under CPLR 3126 by striking St. Luke’s affirmative defense of justification because plaintiff demonstrated that the failure to produce defendant Michael Bonofacio, who was accused by plaintiff of misconduct, for his deposition, was willful, deliberate, contumacious, and done in bad faith (see Williams v Shiva Ambulette Serv. Inc., 102 AD3d 598 [1st Dept 2013]).

CPLR 3126 permits striking an answer for failure to comply with discovery demands only upon a clear showing that the failure was willful and contumacious.

Gray v. Tri-State Consumer Ins. Co. · filed 2018-01-31

The Supreme Court improvidently exercised its discretion in conditionally granting the plaintiff's cross motion pursuant to CPLR 3126 to strike the defendant's answer unless the defendant served a "meaningful" response to the plaintiff's supplemental demand for discovery and inspection within a specified time. "The drastic remedy of striking an answer is inappropriate absent a clear showing that a defendant's failure to comply with discovery demands is willful and contumacious" ( Lantigua v Goldstein , 149 AD3d 1057, 1059).

CPLR 3126 permits a court to strike an answer for willful and contumacious failure to comply with discovery orders.

Shohat v. Suky · filed 2018-12-13

Defendants engaged in willful and contumacious conduct warranting the penalty of striking their answer ( see CPLR 3126; McHugh v City of New York , 150 AD3d 561 [1st Dept 2017]).

CPLR 3126 permits a court to strike an answer for discovery violations when a party's unexplained failure to comply with a court order and an earlier discovery demand supports an inference of willful and contumacious conduct.

Abizeid v. Turner Constr. Co. · filed 2019-05-08

Here, the Supreme Court providently exercised its discretion in granting the plaintiff's motion pursuant to CPLR 3126 to strike the appellants' answer. The appellants' willful and contumacious conduct may be inferred from their undisputed failure, without an adequate excuse, to comply with an order of the court dated January 10, 2017, as well as from their previous failure to comply with the plaintiff's March 10, 2015, discovery demand ( see Mears v Long , 149 AD3d 823, 824).

Section 3126 permits a court to strike objections when a party repeatedly fails, without an adequate excuse, to comply with discovery demands and orders.

Matter of Alston · filed 2019-08-21

Here, the appellant's willful and contumacious conduct can be inferred from his repeated failures, without an adequate excuse, to comply with discovery demands and the Surrogate's Court's discovery orders ( see Abizeid v Turner Constr. Co. , 172 AD3d 795; Mears v Long , 149 AD3d 823, 824). The court providently exercised its discretion in granting the petitioner's motion pursuant to CPLR 3126 to strike the appellant's objections to the petition.

CPLR 3126(3) permits a court to strike a pleading when repeated, unjustified failures to provide discovery show willful and contumacious conduct.

L.K. v. City of New York · filed 2022-11-09(3)

Here, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs' motion which was pursuant to CPLR 3126 to strike the defendants' answer.

Section 3126(3) permits a court to strike claims when repeated violations of discovery orders, without a reasonable excuse, support an inference of willful and contumacious conduct.

Hongyan Sun v. Lee · filed 2023-01-18(3)

Under those circumstances, it was a provident exercise of the Supreme Court's discretion to grant that branch of the defendants' motion which was pursuant to CPLR 3126(3) to strike the plaintiff's claims relating to emotional and psychiatric injuries.

Section 3126 permits a court to strike an answer for a discovery failure when the party seeking that sanction shows willful or contumacious noncompliance.

Navarino v. Shaw · filed 2024-12-27

Plaintiff fails to meet its burden that defendant willfully and contumaciously failed to comply with discovery demands. In fact, while there may be some discrepancy over certification and completeness of the records produced, records have been served upon plaintiff and plaintiffs counsel several times.

Section 3126 permits a court to strike an answer for discovery misconduct, but that remedy requires a clear showing of willful or contumacious noncompliance or bad faith.

Hernandez v. City of New York · filed 2026-04-01

Here, the plaintiffs failed to make a clear showing that the City defendants or HHC willfully or contumaciously failed to comply with discovery demands or acted in bad faith (see Borchkhadze v McMahon, 235 AD3d 944, 946; Farrell v Keldiyarov, 234 AD3d 933, 935). Accordingly, the Supreme Court properly declined to strike the answers of the City defendants and of HHC based on their alleged failure to comply with discovery demands and court-ordered discovery.

A court may decline to strike an answer under CPLR 3126 when there is no evidence of willful or contumacious discovery conduct.

Suarez v. City of New York · filed 2026-05-20

Under the circumstances of this case, in the absence of evidence of willful or contumacious conduct, the granting of the motion of the defendant City of New York and the denial of that branch of the plaintiff's cross-motion which was pursuant to CPLR 3126 to strike the City's answer was a provident exercise of discretion (see Caban v Rzak Dev. Inc., 132 AD3d 937, 937-938; Hoi Wah Lai v Mack, 89 AD3d 990).

Section 3126 does not support an award of discovery costs and expenses without evidence that the party refused to comply with a discovery order or willfully failed to disclose information.

National Bank of Geneva v. Case Credit Corp. · filed 2007-02-02

There is no evidence in the record before us that the Case defendants refused to comply with a discovery order or willfully failed to disclose information (see CPLR 3126).

Section 3126 permits sanctions such as preclusion of evidence or dismissal when a plaintiff refuses to cooperate with a medical examination.

Washington v. Delossantos · filed 2007-10-09

Where there is evidence that the plaintiff refuses to cooperate in the examination process, the proper remedy is for the defendant to move, not for summary judgment pursuant to CPLR 3212, but rather for sanctions such as preclusion of evidence, or dismissal of the complaint (see CPLR 3126; cf. Allen v State of New York, 228 AD2d 1001, 1002 [1996]).

Section 3126 permits a court to order reimbursement of cancellation and no-show fees when a party misses duly noticed medical examinations without a reasonable excuse.

Torello v. Williams · filed 2025-02-21

CPLR 3126 authorizes the court to sanction a party who “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed.” ... Accordingly, that branch of defendants’ motion seeking reimbursement of the cancellation and no show fees incurred is ... granted, as they have established their entitlement to such reimbursement through proof that they duly noticed these IMEs, that plaintiff failed to appear for same without a reasonable excuse and, as a result, defendants incurred $2,400.00 due to late cancellation and no show fees of $600.00 on March 21, 2024, April 18, 2024, June 20, 2024, and August 15, 2024 (see e.g., Janicki v Beaux Arts II LLC, 2016 NY Slip Op 30614[U] [Sup Ct, NY County 2016]).

CPLR 3126 sanctions are unwarranted for a single inadvertent missed independent medical examination without willful noncompliance or a pattern of delay.

Suram-Gomez v. 957 Sang Corp. · filed 2025-11-14

The case illustrates that sanctions under CPLR 3126 and 22 NYCRR 130-1.1 are reserved for egregious, contumacious, and bad-faith misconduct. By contrast, here there was no violation of any court order, no repeated refusals, no threats, no dishonesty, and only a single missed IME attributable to counsel's calendaring error that Plaintiff agreed to cure by rescheduling.

A party whose answer is struck under a conditional discovery sanction order may seek to vacate that order under CPLR 5015 (a) (1).

Lauer v. City of Buffalo · filed 2008-07-03(3)

The primary issue presented on this appeal is whether a party who has failed to comply with a conditional order striking its answer as a discovery sanction pursuant to CPLR 3126 (3) may seek relief from its default in failing to comply by a motion to vacate that order pursuant to CPLR 5015 (a) (1). We conclude that such relief is available, and we further conclude that Supreme Court properly granted the motion of defendants Niagara Frontier Transit Authority and NFT Police Department (collectively, NFTA defendants) pursuant to CPLR 5015 (a) (1) seeking that relief.

Section 3126 permits conditional discovery sanctions, but a conditional dismissal order must be sufficiently specific to be enforceable.

ISKALO ELECTRIC TOWER LLC v. STANTEC CONSULTING SERVICES, INC. · filed 2014-01-03

The court has the power to grant a conditional order that imposes a sanction upon a party unless that party submits to a discovery request by a certain date (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 79; Legarreta v Neal, 108 AD3d 1067, 1068; see also CPLR 3126). ... “Nevertheless, a conditional order, like any other, must be sufficiently specific to be enforceable” (Trabanco v City of New York, 81 AD3d 490, 492). Here, the court’s conditional order did not give a specific, concrete directive, but rather ordered plaintiffs to disclose “the documents and information sought in [defendant]’s motion.”

A party challenging sanctions under a conditional discovery order must move to vacate the order and show a reasonable excuse for nonproduction and a meritorious claim or defense.

Lawrence v. North Country Animal Control Center, Inc. · filed 2015-11-05

The proper avenue for a defaulting party to challenge the self-executing sanctions of a conditional order, however, is a motion to vacate, in which the sanctioned party must establish "(1) a reasonable excuse for the failure to produce the requested items and (2) the existence of a meritorious claim or defense" (Gibbs v St. Barnabas Hosp., 16 NY3d 74, 80 [2010]; accord Cochran v Cayuga Med. Ctr. At Ithaca, 90 AD3d 1227, 1227 [2011]).

A party seeking relief from a conditional preclusion order must show a reasonable excuse for failing to comply and a potentially meritorious defense.

Julien-Thomas v. Platt · filed 2015-11-25

To be relieved of the adverse impact of the conditional order of preclusion, the defendant was required to demonstrate a reasonable excuse for his failure to comply with the order and the existence of a potentially meritorious defense (see Archer Capital Fund, L.P. v GEL, LLC, 95 AD3d at 801; Wei Hong Hu v Sadiqi, 83 AD3d 820, 821 [2011]).

A party seeking relief from a conditional order striking its answer for discovery noncompliance must show a reasonable excuse for the failure and a potentially meritorious defense.

Scholem v. Acadia Realty L.P. · filed 2016-11-23

In order to be relieved of the adverse impact of the conditional order, the defendant was required to demonstrate a reasonable excuse for its failure to produce the witnesses for deposition and a potentially meritorious defense (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 80 [2010]; Estate of Alston v Ramseur, 124 AD3d 713, 713 [2015]; Almonte v Pichardo, 105 AD3d 687, 688 [2013]).

A court may strike an answer for failure to comply with a conditional discovery order without a new finding of willfulness when the order followed findings of delay and noncompliance with discovery orders.

New York Univ. v. Nabulsi · filed 2018-12-31

Upon respondent's noncompliance with this conditional order, Civil Court properly granted petitioner's motion to strike respondent's answer ( see Anderson & Anderson LLP—Guangzhou v North Am. Foreign Trading Corp ., 165 AD3d 511 [2018]). 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 respondent's conduct in failing to comply with the conditional order was willful ( see Keller v. Merchant Capital Portfolios, LLC , 103 AD3d 532 , 533 [2013]).

A judgment based on a CPLR 3126 conditional preclusion order should be vacated when the motions underlying the order were resolved by stipulation before the order was issued.

Brown v. Montefiore Med. Ctr. · filed 2019-01-15

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.

To vacate a conditional preclusion order under CPLR 3126, a party must establish a reasonable excuse for failing to comply with its discovery directives and a meritorious defense.

Hodosy v. Apotheke, LLC · filed 2019-10-29

Defendants failed to establish a reasonable excuse for their failure to comply with the conditional order's discovery directives or a meritorious defense.

CPLR 3126 permits a conditional preclusion order requiring discovery by a set date without a prior finding of wilfulness.

Matter of Metro-North Train Acc. of Feb. 3, 2015 · filed 2019-12-18

Here, given the nature of this action and the parties' past discovery disputes, the Supreme Court providently exercised its discretion in granting the plaintiffs' motion to compel certain discovery and/or for sanctions pursuant to CPLR 3126 to the extent of directing the Metro-North defendants and the Town to provide certain supplemental responses to the plaintiffs' subject discovery requests by no later than March 26, 2018, under threat of preclusion. Contrary to the appellants' contentions, the Supreme Court properly included conditional preclusion language in its order without making a finding of wilfulness.

Section 3126 permits preclusion for discovery noncompliance, but a party facing conditional preclusion may obtain relief by showing a reasonable excuse and a potentially meritorious claim.

Gutierrez v. Good Bar, LLC · filed 2022-03-09

"To be relieved of the adverse impact of the conditional order of preclusion, a party is required to 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; see Gibbs v St. Barnabas Hosp. , 16 NY3d at 80; McIntosh v New York City Partnership Dev. Fund Co., Inc. , 165 AD3d at 1252). ... Therefore, the Supreme Court improvidently exercised its discretion in granting the defendants' motion pursuant to CPLR 3126 to preclude the plaintiffs from offering evidence at trial ( see Liese v Hennessey , 164 AD3d 1318, 1319; Tanriverdi v United Skates of Am., Inc. , 164 AD3d at 859-860; see also Latture v Smith , 304 AD2d at 536).

Section 3126 permits a court to issue a conditional discovery sanction order on its own initiative.

Spetner v. Dan · filed 2022-05-04

Contrary to the defendants' contention, CPLR 3126 empowered the court to issue the first conditional order sua sponte ( see S.R. Garden City, LLC v Magnacare, LLC , 114 AD3d 925, 926; Pellegrino v Salzberg , 270 AD2d 470, 470; see also Ahmed v Ahmed , 175 AD3d at 1364).

Under CPLR 3126, a conditional dismissal order removes the need to determine whether failure to comply with discovery was willful when the party cannot show a reasonable excuse for failing to comply with the order.

Wilmington Sav. Fund Socy., FSB v. Donaldson · filed 2022-05-26

By virtue of the issuance of a conditional order of dismissal, the motion court was "relieve[d] . . . of the unrewarding inquiry into whether plaintiff's resistance [to complying with discovery] was willful" ( Mehler v Jones , 181 AD3d 535, 535 [1st Dept 2020] [internal quotation marks and brackets omitted]). Plaintiff failed to demonstrate a reasonable excuse for its failure to comply with the conditional order ( see id. at 536).

A conditional order of preclusion becomes absolute when a party fails to produce the requested discovery by the specified deadline.

Little v. Steelcase, Inc. · filed 2022-06-03

The conditional order of preclusion was "self-executing and [plaintiff's] failure to produce [the requested] items on or before the date certain rendered it absolute" ( Burton v Matteliano , 98 AD3d 1248, 1250 [4th Dept 2012] [internal quotation marks omitted]).

Under CPLR 3126, a conditional discovery sanction becomes effective when a party misses the deadline and fails to show a reasonable excuse.

Vallejo v. Uzzi · filed 2023-02-08

Here, the plaintiff failed to comply with the conditional order by providing the required authorizations by June 20, 2018. Further, the plaintiff failed to demonstrate a reasonable excuse for his failure to comply with the conditional order, and, thus, this Court need not consider whether the plaintiff has a potentially meritorious cause of action ( see Martin v Dormitory Auth. of the State of N.Y. , 208 AD3d at 578; Deutsche Bank Natl. Trust Co. v Bakarey , 198 AD3d 718, 722).

CPLR 3126 permits trial courts to impose discovery sanctions through conditional orders that take effect if a party fails to provide disclosure by a specified deadline.

Citizen Watch Co. of Am., Inc. v. Zapco 1500 Inv., L.P. · filed 2023-05-25

CPLR 3126 authorizes trial courts to craft self-executing orders that impose discovery sanctions on a party unless that party submits to the disclosure within a specified time ( Gibbs v St. Barnabas Hosp. , 16 NY3d 74, 80 [2010]).

Section 3126 empowers a court to impose discovery sanctions, including striking a pleading, when a party fails to comply with a conditional disclosure order.

Patsiouras v. Koklanos · filed 2024-12-04(3)

CPLR 3126 empowers a court to craft a conditional order which imposes discovery sanctions, including the striking of a pleading, "unless within a specified time the resisting party submits to the disclosure" ( Gibbs v St. Barnabas Hosp. , 16 NY3d 74, 79 [internal quotation marks omitted]; see CPLR 3126[3]).

A party seeking relief from a conditional dismissal under section 3126 must show a reasonable excuse for failing to comply and a meritorious claim or defense.

Winters v. City of New York · filed 2025-01-15(3)

To be relieved of the impact of a conditional order issued pursuant to CPLR 3126, a party must demonstrate a reasonable excuse for their failure to comply with the conditional order and the existence of a meritorious claim or defense ( see Mention v Archbishop Stepinac High Sch. , 223 AD3d 893, 894; Martin v Dormitory Auth. of the State of N.Y. , 208 AD3d 576, 577). Here, the record demonstrates that the plaintiff failed to comply with the terms of the conditional order of dismissal dated December 3, 2019, and failed to demonstrate a reasonable excuse for his failure to comply.

Section 3126 permits a court to condition striking a party's answer on its failure to meet a discovery deadline.

Matter of Reinbold · filed 2025-01-17

Accordingly, that part of the motion that seeks relief under CPLR 3126 is granted to the extent that, if Respondent fails to comply with Petitioner's First Set of Interrogatories and Demand for Documents within the period of time established by this Decision and Order, Respondent's answer will be stricken upon Petitioner's serving and filing an affirmation of counsel reporting Respondent's non-compliance.

Section 3126 permits a court to conditionally strike a party’s answer if it fails to comply with a discovery order by a specified deadline.

Dozier v. Grenaider Realty Corp. · filed 2025-02-24(3)

Further, "CPLR 3126 [governing penalties for noncompliance with an order of disclosure] authorizes trial courts to craft self-executing orders that impose discovery sanctions on a party unless that party submits to the disclosure within a specified time" (Citizen Watch Co. of Am., Inc. v. Zapco 1500 Inv., L.P., 216 AD3d 562, 562 [1st Dept 2023],citingGibbs v St. Barnabas Hosp., 16 NY3d 74, 80 [2010]).

A conditional order striking an answer under Section 3126 becomes absolute when the defendant fails to comply by the stated deadline.

Carter's Home Gyms, LLC v. Pulse Group USA, Inc. · filed 2025-03-26

Contrary to the defendants' contention, the conditional order, striking the defendants' answer, became absolute upon the defendants' failure to comply therewith by the date set forth therein ( see Western Union N. Am. v Locust Val. Tabacco, Inc. , 209 AD3d 933, 934-935).

Section 3126 permits conditional preclusion for discovery noncompliance; relief from such an order requires a reasonable excuse and a potentially meritorious defense.

Holder v. New York City Tr. Auth. · filed 2025-02-20

Given the above, the court cannot credit defendants with having a reasonable excuse for failing to comply with the conditional order of preclusion in this court’s June 13, 2024 status conference order. ... Because defendants did not establish a reasonable excuse or potentially meritorious defense, the branch of defendants’ motion to vacate the June 13, 2024 conditional order is denied.

A party waives objections to the adequacy and timeliness of disclosure by filing a note of issue and certificate of readiness before seeking a CPLR 3126 discovery sanction.

Iscowitz v. County of Suffolk · filed 2008-09-09

The plaintiffs waived any objection to the adequacy and timeliness of the disclosure by filing a note of issue and certificate of readiness prior to moving pursuant to CPLR 3126 for the imposition of a discovery sanction (see Melcher v City of New York, 38 AD3d 376, 377 [2007]; Escourse v City of New York, 27 AD3d 319, 320 [2006]; Simpson v City of New York, 10 AD3d 601, 602 [2004]; Brown v Veterans Transp. Co., 170 AD2d 638 [1991]; Levy v Wexler, 16 AD2d 688 [1962]).

Filing a note of issue and certificate of readiness waives an objection to the adequacy of disclosure made in a later motion for a CPLR 3126 discovery sanction.

K-F/X Rentals & Equipment, LLC v. FC Yonkers Associates, LLC · filed 2015-09-02

The appellant waived any objection to the adequacy of P.J. Herman’s disclosure by filing a note of issue and certificate of readiness prior to moving pursuant to CPLR 3126 for the imposition of a discovery sanction (see Marte v City of New York, 102 AD3d 557, 558 [2013]; Rivera-Irby v City of New York, 71 AD3d 482, 482 [2010]; Iscowitz v County of Suffolk, 54 AD3d 725, 725 [2008]).

A party that files a note of issue and certificate of readiness before seeking CPLR 3126 sanctions waives objections to the opposing party's failure to disclose.

J.H. v. City of New York · filed 2019-03-13

By filing the note of issue and certificate of readiness prior to moving pursuant to CPLR 3126 for the imposition of a discovery sanction, the plaintiffs waived any objection to the City defendants' failure to meet their disclosure obligations ( see Iscowitz v County of Suffolk , 54 AD3d 725; Melcher v City of New York , 38 AD3d 376, 377; Brown v Veterans Transp. Co. , 170 AD2d 638, 639).

A party who knows of an opponent's disclosure failures waives objections to them by filing a note of issue without first moving for sanctions under CPLR 3126.

Fugazy v. Fugazy · filed 2022-11-02

The plaintiff therefore waived her objections to the defendant's failure to meet his disclosure obligations by failing to move for sanctions under CPLR 3126 before filing the note of issue ( see J. H. v City of New York , 170 AD3d 816, 818; K-F/X Rentals & Equip., LLC v FC Yonkers Assoc., LLC , 131 AD3d 945, 946; Iscowitz v County of Suffolk , 54 AD3d 725, 725).

A motion for spoliation sanctions under CPLR 3126 may be made after a note of issue is filed because it seeks sanctions rather than disclosure.

Parkis v. City of Schenectady · filed 2022-12-29

Plaintiff subsequently filed a note of issue, followed by a motion pursuant to CPLR 3126 to strike defendant's answer as a sanction for its spoliation of the video. ... Preliminarily, the fact that plaintiff moved for spoliation sanctions post-note of issue did not, as defendant asserts, render the motion untimely.

CPLR 3126 does not support preclusion for discovery violations when the party seeking preclusion filed a notice of trial waiving outstanding discovery.

Mazal of ADAR LLC v. Best Plumbing & HVAC Inc. · filed 2025-12-31

Plaintiff's motion for preclusion due to discovery violations was meritless given that plaintiff filed a Notice of Trial and specifically waived any outstanding discovery.

Section 3126 permits an adverse inference charge when a party fails to produce essential documents in its custody and the requesting party bears the burden of proof.

Horizon Inc. v. Wolkowicki · filed 2008-10-07

However, because the party seeking discovery is also the party bearing the burden of proof on the issue, and because the evidence is peculiarly within defendants’ custody, we find that an adverse inference charge is a more appropriate sanction.

CPLR 3126 permits an adverse inference charge for a wilful failure to preserve evidence when the loss does not deprive the opposing party of the means to prove its claim.

SARACH, STEPHEN v. M&T BANK CORPORATION · filed 2016-06-17

Initially, we agree with plaintiff that a sanction was warranted inasmuch as defendant “wilfully fail[ed] to disclose information” that the court had ordered to be preserved (CPLR 3126). ... Thus, we conclude that an appropriate sanction is that an adverse inference charge be given at trial with respect to the unavailable surveillance footage (see Mahiques v County of Niagara, 137 AD3d 1649, 1653; Jennings v Orange Regional Med. Ctr., 102 AD3d 654, 656; Gogos v Modell’s Sporting Goods, Inc., 87 AD3d 248, 254-255), and we therefore modify the order accordingly.

Section 3126 permits an adverse inference charge when a party negligently destroys relevant evidence but the loss does not prevent the other party from proving its case.

Eksarko v. Associated Supermarket · filed 2017-11-15

Since Me-Me’s loss of the video recording was negligent rather than intentional, and the loss of the recording does not completely deprive the plaintiff of the ability to prove her case, the appropriate sanction is to direct that an adverse inference charge be given at trial with respect to the unavailable recording (see Peters v Hernandez, 142 AD3d at 981; Giuliano v 666 Old Country Rd., LLC, 100 AD3d 960, 962 [2012]).

An adverse inference sanction for spoliation does not by itself establish liability; the plaintiff must prove the remaining elements of the claim.

Neve v. City of New York · filed 2018-09-26(3)

Contrary to the plaintiff's contention, the sanction order does not obviate the need for a trial on the issue of liability. Even assuming that the sanction order can be interpreted as relieving the plaintiff from having to establish the City's constructive notice—an issue that was neither addressed nor considered by this Court on the prior limited appeal from the sanction order ( see Neve v City of New York , 117 AD3d 1006)—the sanction order should not be read as relieving the plaintiff from the burden of establishing the remaining elements of his negligence cause of action, including the existence of the alleged defect and the causal relationship between the defect and the accident.

CPLR 3126 allows a trial court to impose an adverse inference instruction for failure to produce requested documents, even if other parties may have produced them.

Board of Mgrs. on Behalf of the Unit Owners of the 322 W. 57th St. Condominium v. Leardon Boiler Works, Inc. · filed 2019-12-05

A determination of sanctions pursuant to CPLR 3126 lies in the trial court's discretion, and defendants failed to show that the trial court abused its discretion in ordering an adverse inference instruction against them at trial (CPLR 3126; Husovic v Structure Tone, Inc. , 171 AD3d 559, 560 [1st Dept 2019]). The fact that the documents requested by plaintiff may have been produced by other parties does not excuse defendants' failure to produce them.

Section 3126 permits an adverse inference charge as a sanction for spoliation, but the charge must allow rather than require the jury to draw the inference.

Temiz v. TJX Cos., Inc. · filed 2019-12-26

In ordering a lesser sanction than the striking of the answer that plaintiff requested in response to defendant's spoliation of evidence ( see CPLR 3126), the motion court directed that the jury be instructed that "if the footage was preserved and produced, it would have shown that a slippery substance was on the floor long enough for the defendant to be aware of the condition and therefore the defendant had constructive notice of the slippery condition at the time plaintiff fell." This charge is not appropriate, because it requires, rather than permits, the jury to draw an adverse inference, and is tantamount to a grant to plaintiff of summary judgment as to liability ( see Pegasus Aviation I, Inc. v Varig Logistica S.A. , 26 NY3d 543, 554 [2015]). Accordingly, a new, permissive adverse inference charge is required ( see PJI 1:77.1).

CPLR 3126 permits an adverse inference for spoliation of evidence, but the party requesting it must provide evidence supporting the alleged loss.

Lebov, LLC v. State of New York · filed 2020-07-22

Finally, contrary to the claimant's contention, the Court of Claims providently exercised its discretion in denying the claimant's request to impose sanctions for the spoliation of evidence by according an adverse inference with respect to the alleged destruction of draft appraisal reports prepared by the State's appraiser ( see CPLR 3126; see generally Lilavois v JP Morgan Chase & Co. , 151 AD3d 711, 712). The claimant did not present any evidence that the State's appraiser violated the Uniform Standards of Professional Appraisal Practice by failing to maintain in his work file a prior draft appraisal report that was transmitted to the State.

An adverse inference charge ordered on a CPLR 3126 sanctions motion during discovery is a discovery sanction rather than a prospective evidentiary ruling.

Hegbeli v. TJX Cos., Inc. · filed 2022-01-27

An order stating that plaintiff was entitled to such a charge had been issued during discovery upon plaintiff's motion for sanctions pursuant to CPLR 3126. Thus, the adverse inference charge was a discovery sanction, not a prospective evidentiary ruling ( compare e.g. Kelly v Metro North Commuter R.R. , 74 AD3d 483 [1st Dept 2010]; Diller v Munzer , 141 AD3d 630 [2d Dept 2016]).

Section 3126 permits an adverse inference as proportionate relief when lost or destroyed evidence deprives a party of proof.

RCSUS Inc. v. SGM Socher, Inc. · filed 2023-03-14

The adverse inference was a provident exercise of the motion court's discretion "to provide proportionate relief to a party deprived of lost or destroyed evidence" ( Pegasus Aviation I, Inc. v Varig Logistica S.A. , 26 NY3d 543, 551 [2015]; see CPLR 3126).

Section 3126 permits an adverse inference charge when missing evidence may affect a party’s defense, even when striking a pleading or precluding evidence is unwarranted.

Bah v. City of New York · filed 2024-07-23

However, considering the potential impact of the missing evidence on Osmose' s defense, the court finds it appropriate to order an adverse inference jury charge at trial.

CPLR 3126 permits an adverse inference charge for negligent spoliation when a party had an opportunity to safeguard the evidence.

Storm v. Kaleida Health · filed 2024-07-26

We conclude that Kaleida met its burden on the motion and that the court did not abuse its discretion in directing that an adverse inference against the Safire Care defendants be charged to the jury at trial. ... Under the circumstances of this case, an adverse inference charge against the Safire Care defendants is an appropriate sanction for the negligent spoliation of the evidence ( see Enstrom , 27 AD3d at 1087).

Section 3126 permits an adverse inference of alter ego status when a party disobeys an order for alter ego discovery.

AT&T Mobility Holdings B.V. v. Telecom · filed 2025-06-26

The court properly granted plaintiff's motion for an adverse inference under CPLR 3126 that defendants are alter egos of nonparties alleged to be their affiliates.

CPLR 3126 permits an adverse inference charge for lost or destroyed relevant evidence when striking a pleading is unwarranted.

Dorman v. Luva of NY, LLC · filed 2025-11-12

Under the circumstances, the Supreme Court should have granted that branch of the plaintiffs' motion which was pursuant to CPLR 3126 to strike the defendants' answer to the extent of directing that an adverse inference charge be issued at trial against the defendants with respect to the loss or destruction of their email accounts and emails ( see Dagro Assoc. II, LLC v Chevron U.S.A., Inc. , 206 AD3d at 795; Squillacioti v Independent Group Home Living Program, Inc. , 167 AD3d at 676).

CPLR 3126 preclusion sanctions for failing to comply with a discovery order are unwarranted when the order was never served with notice of entry.

Andrade v. American Parkinson Disease Ass'n · filed 2009-10-13

However, the order containing that directive, which was dated October 16, 2008, but not entered until January 9, 2009, was never served upon the plaintiff with notice of entry. Accordingly, so much of the order dated February 4, 2009, as granted those branches of CLJ’s cross motion which were to preclude the plaintiff from presenting certain evidence and conducting a deposition of CLJ’s investigators as a sanction for the plaintiffs alleged noncompliance with the order entered January 9, 2009, must be reversed, and the plaintiffs time to serve the authorizations must be extended as indicated.

Section 3126’s strike or preclusion remedies are not the proper first step when a party responds to discovery demands inadequately; the requesting party should first move to compel under CPLR 3124.

Dufresne-Simmons v. Wingate, Russotti & Shapiro, LLP · filed 2016-06-10

Thus, when a party responds to discovery demands but provides inadequate responses, the proper remedy is a motion to compel pursuant to CPLR 3124 as opposed to a motion to strike or preclude pursuant to CPLR 3126 (Double Fortune Prop. Invs. Corp. v Gordon, 55 AD3d 406, 407 [1st Dept 2008] [“Plaintiff having responded to defendant’s discovery requests, the proper course for defendant, rather than moving to strike the complaint pursuant to CPLR 3126, was first to move to compel further discovery pursuant to CPLR 3124”]).

Section 3126 permits a court to consider an undisclosed witness’s affidavit when the opposing party knew of the witness, the failure to disclose was excused, and there was no evidence that it was willful.

Yax v. Development Team, Inc. · filed 2009-11-24

Contrary to the plaintiff’s contention, the Supreme Court providently exercised its discretion in considering Kambitsis’s affidavit. Although the defendant failed to name Kambitsis as a witness in response to the plaintiffs discovery demands, it is evident that the plaintiff had knowledge of Kambitsis’s existence, since both the plaintiff and the defendant’s project superintendent mentioned Kambitsis in their deposition testimony. Moreover, the defendant offered an excuse for failing to disclose Kambitsis as a witness and there was no evidence that this failure was willful (see CPLR 3126; Riley v ISS Intl. Serv. Sys., 304 AD2d 637, 637 [2003]; cf. Rivera v Glen Oaks Vil. Owners, Inc., 41 AD3d 817, 818 [2007]).

CPLR 3126 permits the court to strike proposed deposition corrections that are untimely, insufficiently explained, and contradict material testimony.

Begley v. City of New York · filed 2010-05-24

Under these circumstances, plaintiffs’ deposition testimony should remain unaltered, and the motion to strike the proposed corrections is granted.

Section 3126 permits a default judgment when prolonged failure to substantially comply with discovery orders supports an inference of willfulness.

In re the Testamentary Trust Created by Will of Kalin · filed 2010-12-16

Here, respondent’s failure to substantially comply with two orders for approximately three years gave rise to an inference of willfulness sufficient to support the relief granted, and an adequate explanation for the protracted delay was not provided (see Matter of Scaccia, 66 AD3d 1247, 1250 [2009]; Cavanaugh v Russell Sage Coll., 4 AD3d 660, 660-661 [2004]).

Section 3126 permits a default judgment for discovery noncompliance only when the sanction is commensurate with the disobedience and supported by the record.

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Global Strat Inc. · filed 2013-10-10(3)

Here, Supreme Court abused its discretion with respect to the grant of a default judgment against the individual Nassers. The penalty imposed—entry of a default judgment against the Nassers, individually—was not commensurate with the alleged disobedience, i.e., failure to produce documents that Merrill Lynch claimed were in the Nassers’ possession with respect to the Nasser entities.

CPLR 3126 permits preclusion when a party’s failure to cooperate with disclosure is willful, deliberate, and contumacious.

Richards v. RP Stellar Riverton, LLC · filed 2016-02-24

“To invoke the drastic remedy of preclusion, the Supreme Court must determine that the offending party’s lack of cooperation with disclosure was willful, deliberate, and contumacious” (Pryzant v City of New York, 300 AD2d 383, 383 [2002]; see Palmieri v Piano Exch., Inc., 124 AD3d 611, 612 [2015]).

Section 3126 permits preclusion of trial evidence when a party willfully and contumaciously fails to comply with discovery orders without an adequate excuse.

Hasan v. 18-24 Luquer Street Realty, LLC · filed 2016-11-02

In light of AK Concrete’s willful and contumacious conduct, the Supreme Court providently exercised its discretion in precluding AK Concrete from, among other things, offering any testimony or evidence at trial (see Piatek v Oak Dr. Enters., Inc., 129 AD3d 811 [2015]; Stone v Zinoukhova, 119 AD3d 928 [2014]; Touray v Munoz, 96 AD3d 623 [2012]; Mason v MTA N.Y. City Tr., 38 AD3d 258 [2007]).

Section 3126 permits a court to preclude a party from offering documents at trial when the party repeatedly fails to comply with discovery orders without a reasonable excuse.

Watson v. 518 Pa. Hous. Dev. Fund Corp. · filed 2018-04-18

The defendants offer no excuse for their conduct. The defendants' dilatory discovery conduct cannot be condoned, and it would be manifestly unfair to the plaintiff for the defendants to attempt to offer any of the subject documents at trial, should the documents be located. Accordingly, the court should have granted that branch of the plaintiff's motion which was for an order of preclusion to the extent of precluding the defendants from offering at trial any document that was not produced in response to the plaintiff's discovery demands.

Section 3126 does not warrant enforcing preclusion orders where a party substantially complied with discovery and the delays were not shown to be willful and contumacious.

Aiken v. Liotta · filed 2018-12-19

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 726; Zouev v City of New York , 32 AD3d 850, 851; Passarelli v National Bank of Westchester , 81 AD2d 635, 636).

CPLR 3126 permits preclusion when a party willfully and contumaciously violates discovery orders by producing recordings late.

Polakoff v. NYU Hosps. Ctr. · filed 2019-10-29

Here, the motion court did not abuse its discretion in granting defendants' motion to preclude plaintiffs' use of the video and audio recordings pursuant to CPLR 3126. Plaintiffs' failure to produce the audio and video recordings until after their depositions and on the eve of the continuation of defendant Dr. Galloway's deposition demonstrates plaintiffs' willful and contumacious violation of the court's various discovery orders as well as plaintiffs' duty of full disclosure under CPLR 3101(i) ( Bermejo at 146-147; compare Fox v Grand Slam Banquet Hall , 142 AD3d 473, 474-475 [1st Dept 2016]; Colome v Grand Concourse 2075 , 302 AD2d 251 [1st Dept 2003]).

CPLR 3126 does not warrant preclusion when the party seeking it fails to show a violation of a conditional discovery order.

Siradze v. AVB 1865 Broadway, LLC · filed 2022-08-10

Since the plaintiff failed to show that the defendants violated the conditional order, the drastic sanction of precluding the defendants from testifying or offering any evidence at trial was unwarranted ( see Pierre v 100 Corp. , 97 AD3d at 805). Accordingly, the Supreme Court should have denied that branch of the plaintiff's motion which was pursuant to CPLR 3126 to preclude the defendants from testifying or offering any evidence at trial.

Section 3126 permits a court to preclude a party from advancing a theory on summary judgment when its willful, unexplained delay in producing ordered discovery deprived the opposing party of the chance to use it.

C. K. v. City of New York · filed 2023-05-10

A court may impose sanctions where a party "refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126). ... Thus, the Supreme Court should have granted the plaintiff's alternative request to preclude the DOE from arguing or offering evidence demonstrating, in support of the defendants' motion for summary judgment, that the plaintiff's injuries resulted from an unforeseeable, spontaneous act.

CPLR 3126 permits a self-executing order precluding undisclosed evidence if a party fails to comply with a discovery order.

Abuzaid v. Almayouf · filed 2024-04-19

Upon any failure of the defendant to fully and timely comply with this order, the plaintiff may submit an affirmation of non-compliance to the court and the defendant shall be precluded from offering any evidence not produced in any dispositive motion or trial. This order shall be self-executing and will become absolute upon the defendant's failure to comply with the court's directives, without the necessity of further motion practice.

Section 3126 does not warrant a judgment as a discovery sanction without a showing that the failure to provide discovery was willful and contumacious or in bad faith.

Hawkins v. City of New York · filed 2025-04-23

Here, the plaintiff failed to comply with 22 NYCRR 202.20-f(b) and did not show that the actions of the City in failing to schedule its witness for a deposition constituted willful and contumacious or bad faith conduct that would warrant the drastic remedy of granting the plaintiff a judgment. Further, the plaintiff did not move to compel discovery nor did the plaintiff request a compliance conference prior to moving for a judgment. Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's motion.

A court may deny a default judgment sought under § 3126(3) when the parties have not submitted the discovery compliance stipulation required by its preliminary conference order.

Gu v. Uber Tech. Inc. · filed 2025-05-13(3)

ORDERED that the motion, pursuant to Judiciary Law § 756 and CPLR § 3126(3), of plaintiff to hold defendant in contempt and for a default judgment is denied; and it is further ... ORDERED that the motion of plaintiff for a default judgment is denied as neither party has submitted a proposed compliance discovery conference stipulation, to be so-ordered, as directed by the Preliminary Conference Order dated April 18, 2024 (NYSCEF Doc No 33); and it is further ... ORDERED that pro se plaintiff and defense counsel shall post on NYSCEF a proposed discovery compliance order or dueling proposed discovery compliance conference orders (i.e. each party shall complete and upload the fillable form provided by the court on NYSCER) at least two days before June 26, 2025, on which date pro se plaintiff and defense counsel shall appear in courtroom 331 of New York State Supreme Court, 60 Centre Street, New York, New York for a discovery compliance conference.

Section 3126 permits preclusion for discovery failures, but preclusion is too severe when a party has attempted to comply and its delay has not been shown to be willful or in bad faith.

N.E. v. Parkash 242, LLC · filed 2025-05-27

Supreme Court improvidently exercised its discretion in precluding plaintiffs from presenting evidence to support their liability and damages claims against Parkash for failing to comply with discovery demands. Although plaintiffs were not fully compliant with certain discovery directives, including providing a supplemental bill of particulars and authorizations, preclusion is too severe a sanction under the circumstances ( see Hogin v City of New York , 103 AD3d 419, 420 [1st Dept 2013]). Parkash did not conclusively demonstrate that plaintiffs' delay in providing discovery was willful or in bad faith.

CPLR 3126(3) permits a default judgment for discovery noncompliance when the failure is willful or contumacious.

Nadal v. New York City Dept. of Homeless Servs. · filed 2025-09-10(3)

The plaintiff also failed to show that the defendants had willfully or contumaciously failed to comply with discovery demands so as to warrant entry of a default judgment pursuant to CPLR 3126(3) ( see Samaroo v New York City Tr. Auth. , 229 AD3d 577, 579; Plenty v New York City Tr. Auth. , 229 AD3d 571, 573).

Section 3126 permits preclusion as a penalty for refusing to obey a disclosure order or wilfully failing to disclose required information.

P.P.S. v. C.J.G. · filed 2026-03-06

Generally, CPLR § 3126 sets forth the manner within which penalties, including preclusion, may be directed in the event a litigant fails to comply with discovery directives: ... Here, clearly there is no allegation of a failure to disclose, nor is there any other basis outside of FERPA which Responded relies upon for preclusion of Petitioner's Exhibits.

A request for a CPLR 3126 penalty cannot be made for the first time on appeal.

Rivera v. City of New York · filed 2011-12-13

The plaintiffs request for the imposition of a penalty pursuant to CPLR 3126 is improperly made for the first time on appeal.

A request for a CPLR 3126 discovery penalty cannot be made for the first time on appeal.

RULINSKY, VALENTINA v. WEST, JERMAINE · filed 2013-06-14

The father failed to preserve for our review his contention that the court should have dismissed the modification petition due to the mother’s alleged lack of compliance with his discovery demand inasmuch as a “request for the imposition of a penalty pursuant to CPLR 3126 is improperly made for the first time on appeal” (Rivera v City of New York, 90 AD3d 735, 736).

A request for a CPLR 3126 discovery penalty cannot be made for the first time on appeal.

Weaver v. DeRonde Tire Supply, Inc. · filed 2022-07-08

Defendants failed to preserve for our review the latter contention, which is actually a contention that the court should have sanctioned plaintiff for a discovery violation by refusing to consider the affidavit and amended affidavit, inasmuch as a "request for the imposition of a penalty pursuant to CPLR 3126 is improperly made for the first time on appeal" ( Rivera v City of New York , 90 AD3d 735, 736 [2d Dept 2009]; see Matter of Rulinsky v West , 107 AD3d 1507, 1510 [4th Dept 2013]; see also McClain v Lockport Mem. Hosp. , 236 AD2d 864, 865 [4th Dept 1997], lv denied 89 NY2d 817 [1997]).

Section 3126 permits sanctions for failure to comply with a disclosure order, but a party must request them in the trial court before seeking relief on appeal.

Garvin v. Garvin · filed 1990-06-11

With respect to that branch of the cross motion which was to compel the petitioner to turn over pertinent videotapes, we note that the mother correctly urges on appeal that failure to comply with the order dated December 19, 1989, is ground for imposition of sanctions (cf., CPLR 3126). However, the mother made no application for the imposition of sanctions before the Family Court. Therefore her assertion is not a basis for modification of the order appealed from.

CPLR 3126 applies to refusal to comply with a discovery order or a willful failure to disclose.

Strong v. City of New York · filed 2013-10-15

Initially, it is New York’s common-law doctrine of spoliation, rather than CPLR 3126, that we must consider, since CPLR 3126 covers refusal to comply with a discovery order or a willful failure to disclose, neither of which is applicable here.

Section 3126 does not authorize dismissal for failing to file a note of issue on time because that failure is not disobedience of an order for disclosure.

Tolkoff v. Goldstein · filed 2020-07-29

Moreover, the Supreme Court could not rely upon CPLR 3126 as a basis upon which to dismiss the complaint as the plaintiff's failure to timely file the note of issue or to move to extend the time to file the note of issue did not constitute disobedience of an "order for disclosure" (CPLR 3126; see Ramirez v Reyes , 171 AD3d 1114, 1115-1116).

Section 3126 authorizes relief when a party refuses to obey an order for disclosure or wilfully fails to disclose information the court finds ought to have been disclosed.

Matter of Sanitation Salvage Corp. v. City of New York · filed 2024-10-17

Nevertheless, as the procedural history of this proceeding demonstrates, Supreme Court properly denied the motion to enforce the discovery portion of an August 27, 2018 order to show cause, as respondents did not "refuse[] to obey an order for disclosure or wilfully fail[] to disclose information which the court finds ought to have been disclosed" (CPLR 3126; see Abe v New York Univ. , 169 AD3d 445, 448 [1st Dept 2019], lv dismissed 34 NY3d 1089 [2020]).

Section 3126 gives courts broad discretion to impose sanctions when a party refuses to obey a disclosure order or wilfully fails to disclose information that should have been disclosed.

A.B. v. Roman Catholic Diocese of Brooklyn · filed 2024-10-30

CPLR § 3126 vests this Court with broad discretion regarding the nature and severity of sanctions to impose upon a party that "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" or "frustrates the disclosure scheme."

Section 3126 provides penalties for refusal to comply with a disclosure order or request; it does not provide a mechanism to compel disclosure.

Ghanem v. New York State Indus. for Disabled, Inc. · filed 2025-01-08

While plaintiff moves to compel Industr ies for the Disabled to provide responses to plaintiff's September 13, 2024 request for production of documents pursuant to CPLR § 3 126, CPLR § 3126 is not a mechanism to compel disclosure (see generally CPLR § 3126).

Section 3126 permits striking pleadings or precluding evidence for purposeful discovery noncompliance in civil actions, but those punitive remedies are unavailable against a custodial parent in a child support proceeding.

Yemi O. v. Amanda Q. · filed 2015-12-17

Where the failure to comply with orders relating to disclosure in a civil action is purposeful or intended to frustrate the rights of an adversary, a court may impose stringent sanctions which can include striking the pleadings of the offending litigant or the preclusion of evidence (CPLR 3126; Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., 22 NY3d 877, 880 [2013]). Those punitive remedies are not available in a child support proceeding where the petitioner or custodial parent seeking support fails to comply with the statutory directive that there be compulsory financial disclosure by both parties.

Section 3126 does not warrant discovery sanctions for a missed nonparty deposition when the defendant advised the plaintiff in advance that the witness could not appear on the selected date.

Pezhman v. Chanel, Inc. · filed 2016-01-21

Discovery sanctions, such as striking defendant’s answer, are unwarranted (see CPLR 3126; Catarine v Beth Israel Med. Ctr., 290 AD2d 213, 215 [1st Dept 2002]). Although defendant failed to appear at a nonparty deposition, it contacted plaintiff in advance and advised her that the witness could not appear on the date she had selected.

Section 3126 does not warrant conditionally striking an answer for failure to appear at a deposition without evidence of willful and contumacious conduct; the court may instead preclude trial testimony unless the party appears for a deposition.

Brodsky v. Amber Court Assisted Living, LLC · filed 2017-02-08

In the absence of evidence that the defendant Keisha Adams willfully and contumaciously failed to appear for an examination before trial, the Supreme Court improvidently exercised its discretion in conditionally striking her answer (see Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 739 [2012]; Patel v DeLeon, 43 AD3d 432, 432-433 [2007]).

Section 3126 permits a court to conditionally strike an answer when defendants repeatedly fail to appear for depositions.

DeJesus v. Lilly Trans Corp. · filed 2023-01-25

Contrary to the defendants' contention, the Supreme Court providently exercised its [*2]discretion in conditionally granting the plaintiff's motion pursuant to CPLR 3126 to strike the defendants' answer unless the defendants appeared for depositions within 30 days ( see Sepulveda v 101 Woodruff Ave. Owner, LLC , 166 AD3d at 836-837; Almonte v Pichardo , 105 AD3d 687; Carabello v Luna , 49 AD3d at 680; Bates v Baez , 299 AD2d at 382).

CPLR 3126 permits dismissal for willful or contumacious failure to appear for court-ordered depositions.

Dabrowski v. ABAX Inc. · filed 2023-02-09

Therefore, the motion court providently exercised its discretion in granting defendants' motion to dismiss absent class member Piotr Nartowicz from the action ( see Fish & Richardson, P.C. v Schindler , 75 AD3d 219, 220 [1st Dept 2010]; CPLR 3126). Nartowicz's continued failure to contact class counsel or appear for his noticed depositions over the course of 15 years of litigation, including depositions noticed pursuant to a so-ordered stipulation and those in which a signed certified mail return receipt was received, demonstrates willful or contumacious conduct warranting his dismissal from the action ( see Rocco v KCL Protective Servs. , 283 AD2d 317, 318 [1st Dept 2001]; see also Reidel v Ryder TRS, Inc. , 13 AD3d 170, 171 [1st Dept 2004]).

Section 3126 permits a court to strike a party's answer for refusing to appear for a court-ordered deposition.

Kabir v. Formica · filed 2025-04-03

Accordingly, Plaintiff's Motion Sequence No. 005 request for to strike Defendant Big E Deli N Fuel Corp.'s answer, pursuant to CPLR § 3126 , for Defendant Big E Deli N Fuel Corp.'s failure to appear for their deposition is GRANTED .

Section 3126(3) permits a court to order a party’s answer stricken if the party fails to comply with an order to appear for a deposition by a specified deadline.

Gamble v. CPV Val., LLC · filed 2025-08-13(3)

ORDERED that Defendants’ answer shall be stricken unless, within 30 days of the date of this order, defendants produces for deposition a witness with knowledge of the facts at the office of counsel for Plaintiff on a date and at a time convenient for the parties.