N.Y. C.P.L.R. § 3126

A court may decline CPLR 3126 sanctions when a failure to disclose is not willful or contumacious, while imposing a lesser sanction for delay.

Williams v. Coren · filed 1985-07-29

We do not find that the plaintiff has acted in a willful or contumacious manner to frustrate or thwart the disclosure sought so as to warrant the imposition of a sanction specifically set forth in CPLR 3126 (cf. Kramme v Town of Hempstead, 100 AD2d 447, 451). However, under the circumstances of this case, including the dilatory tactics employed by the plaintiff, the sanction imposed is warranted.

CPLR 3126 permits a court to decline disclosure sanctions when a party answers interrogatories to the best of its ability.

Jim Waters Corp. v. Colligan · filed 1985-11-04

Special Term properly exercised its discretion pursuant to CPLR 3126 in declining to impose sanctions after finding that defendants had answered the plaintiffs’ interrogatories in issue to the best of their ability (see, Giraud v New York Blower Co., 96 AD2d 828), as well as in refusing to appoint a Referee pursuant to CPLR 3104, where plaintiffs have not demonstrated a need for constant rulings and no substantial litigation was generated by previous disclosure disputes (see, Lee v Lee, 93 AD2d 221).

Section 3126 does not support disclosure sanctions without a showing that a party disobeyed a disclosure order or willfully failed to disclose requested information.

Bank of New York v. Hyland · filed 1987-05-22

Moreover, defendants failed to show that plaintiff disobeyed a court order for disclosure or willfully failed to disclose information sought by defendants (see, CPLR 3126).

CPLR 3126 allows disclosure sanctions, but uncertainty about whether a witness remained under a party’s control can make striking its answer or giving a missing witness instruction unwarranted.

Mulvey v. Service Systems Corp. · filed 1989-01-23

We also agree that because there is uncertainty as to when the witness, Keith Sakowsky, ceased to be employed by and under the control of the defendant, it is not clear that the defendant has acted in a willful or contumacious manner to frustrate disclosure so as to warrant the imposition of such harsh sanctions as striking its answer or, upon trial, giving a missing witness instruction pursuant to CPLR 3126 (cf., Kramme v Town of Hempstead, 100 AD2d 447, 451). However, under the circumstances of this case, the sanction imposed in barring the defendant from calling Keith Sakowsky as a witness, unless produced for deposition within 10 days after service of the order appealed from, was warranted (see, Williams v Coren, 112 AD2d 419).

CPLR 3126 permits sanctions for refusing to obey a properly served disclosure order, including evidence preclusion, adverse resolution of an issue, or striking pleadings.

In re Beiny · filed 1990-11-29

CPLR 3126, additionally, provides that a party who refuses to obey a properly served order of disclosure may be sanctioned. Penalties which may be imposed, as the trial court deems appropriate, include prohibiting the disobedient party from introducing certain evidence, resolution of the issue to which the information is relevant against the party who has refused to disclose, or, the ultimate penalty of striking of pleadings.

Section 3126 permits a court to direct a party to appear for a deposition as relief on a disclosure motion.

Herkrath v. Gaffin · filed 1993-04-29

... and which granted the motion by the Gaffin Defendants pursuant to CPLR 3126 and 3042 (c) to strike the plaintiff’s complaint and Grossman’s answer and/or to compel disclosure to the extent of directing Grossman to appear for a court-ordered deposition, unanimously affirmed, with costs.

To avoid dismissal under a conditional disclosure order, a party must show a reasonable excuse for the delay and a meritorious cause of action.

Cardiomax, Inc. v. Gustafson · filed 1996-05-16

To avoid the effects of the conditional order of dismissal, to which they had previously assented, plaintiffs were required to demonstrate (1) a reasonable excuse for the delay, and (2) a meritorious cause of action (see, Quigley v Jabbur, 124 AD2d 398, 399; Jones v Bryce, 76 AD2d 966, 966-967).

A conditional order of dismissal becomes absolute when a party fails to comply; relief requires a reasonable excuse and a meritorious cause of action.

Kepple v. J. Hill Associates · filed 2000-08-07

To be relieved from the adverse impact of the order of dismissal, the plaintiff had to demonstrate a reasonable excuse for her failure to timely comply with the discovery demands, and the existence of a meritorious cause of action (see, Barriga v Sapo, 250 AD2d 795; Michaud v City of New York, 242 AD2d 369; Cobble Hill Nursing Home v Griffo, 240 AD2d 459). The plaintiff did not meet this burden, and therefore dismissal of the action was proper.

A conditional dismissal order under CPLR 3126 becomes absolute when a party fails to comply; relief requires a reasonable excuse and a meritorious cause of action.

Liotti v. Ruk · filed 2001-04-30

As a consequence of the plaintiffs failure to comply with a conditional order of dismissal, that order became absolute (see, Kepple v Hill Assocs., 275 AD2d 299, 230; Tirone v Staten Is. Univ. Hosp., 264 AD2d 415; Askenazi v Hymil Mfg. Co., 263 AD2d 443). To be relieved from the adverse impact of the order of dismissal, the plaintiff had to demonstrate a reasonable excuse for his failure to timely comply with the discovery demand, and the existence of a meritorious cause of action (see, Barriga v Sapo, 250 AD2d 795; Michaud v City of New York, 242 AD2d 369; Cobble Hill Nursing Home v Griffo, 240 AD2d 459).

CPLR 3126 permits dismissal of a complaint when a party fails to comply with a conditional order of dismissal.

International Merchandise Group Americas, Inc. v. Segerman International, Inc. · filed 2000-11-30

The complaint was also properly dismissed pursuant to CPLR 3126, since plaintiff simply did not address defendant’s contention that plaintiff had failed to comply with the conditional order of dismissal.

CPLR 3126 leaves the nature and degree of a disclosure sanction to the court’s discretion, including a conditional order striking an answer.

Kennedy v. Class · filed 2002-03-18

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 willfully fails to disclose information which the court finds ought to have been disclosed is a matter within the discretion of the court (see, CPLR 3126; Zletz v Wetanson, 67 NY2d 711; Nowak v Veira, 289 AD2d 383). The Supreme Court providently exercised its discretion in conditionally striking the appellant’s answer.

A conditional dismissal under CPLR 3126 becomes absolute when a party fails to comply; relief requires a reasonable excuse for the failure and a meritorious cause of action.

Ciancimino v. Roth · filed 2001-09-17

As a consequence of the plaintiff’s failure to comply with a conditional order of dismissal, that order became absolute. To be relieved from the adverse impact of the order of dismissal, the plaintiff had to demonstrate a reasonable excuse for his failure to timely comply with the discovery demands, and the existence of a meritorious cause of action (see, Liotti v Ruk, 282 AD2d 717; Kepple v Hill Assocs., 275 AD2d 299).

A court may deny dismissal under CPLR 3126 when a party complies with a prior order several weeks late.

Rijos v. Schwab · filed 2001-12-24

Under the circumstances presented herein, the Supreme Court providently exercised its discretion in denying the remaining appellants’ motion pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them, since the plaintiff complied, although several weeks late, with the court’s prior order (see, CPLR 3126; Frias v Fortini, 240 AD2d 467; Kubacka v Town of N. Hempstead, 240 AD2d 374).

Section 3126(1) gives trial courts discretion to resolve a disclosure issue in a party’s favor as a sanction.

Wright v. Visiting Nursing Ass'n of WNY, Inc. · filed 2002-06-14(1)

Supreme Court did not abuse its discretion in denying plaintiffs motion for an order resolving in plaintiffs favor an issue raised during the deposition of defendant’s employee (see CPLR 3126 [1]) and awarding sanctions against defendant and its attorney.

CPLR 3126 gives courts discretion to choose the severity of sanctions when a party disobeys a disclosure order or wilfully fails to disclose required information.

Jaffe v. Hubbard · filed 2002-11-12

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who has refused to obey an order or wilfully fails to disclose information which should be disclosed is a matter within the discretion of the court (see Nicoletti v Ozram Transp., 286 AD2d 719; Pearl v Pearl, 266 AD2d 366; DeJulio v Wulf, 260 AD2d 425; Brady v County of Nassau, 234 AD2d 408).

Section 3126 permits a court to give a person one last opportunity to comply with a subpoena before imposing disclosure sanctions.

Fleming v. Vassallo · filed 2002-06-13

The motion court properly gave respondent one last opportunity to comply with the subject subpoena, compliance with which had been previously directed by this Court (283 AD2d 225; CPLR 3126).

A party seeking relief from a conditional discovery preclusion order must show a reasonable excuse for noncompliance and a meritorious cause of action.

Goldsmith Motors Corp. v. Chemical Bank · filed 2002-12-16

To avoid the adverse impact of the conditional so-ordered stipulation, the plaintiff was required to demonstrate a reasonable excuse for the failure to timely comply with the discovery demands, and the existence of a meritorious cause of action (see Ludwigsen v American Transp. Lines, 242 AD2d 523; cf. Jenkinson v Naccarato, supra; Alphonse v UBJ Inc., 266 AD2d 171; Barriga v Sapo, 250 AD2d 795).

Section 3126 permits sanctions for disobeying a disclosure order when refusal or wilful failure to obey is established.

Quinones v. Caballero · filed 2005-06-15

Moreover, defendant Mills has not established plaintiffs’ refusal or wilful failure to obey the August 2004 order.

To obtain relief from a conditional preclusion order under Section 3126, a defaulting party must show a reasonable excuse for failing to comply and a meritorious claim or defense.

Gibbs v. St. Barnabas Hospital · filed 2010-12-16

Hence, we have made clear that to obtain relief from the dictates of a conditional order that will preclude a party from submitting evidence in support of a claim or defense, the defaulting party must demonstrate (1) a reasonable excuse for the failure to produce the requested items and (2) the existence of a meritorious claim or defense ( see id. at 1000-1001; see also Smith v Lefrak Org., 96 AD2d 859 [2d Dept 1983], affd for reasons stated 60 NY2d 828 [1983]; Amodeo v Radler, 89 AD2d 594 [2d Dept 1982], affd 59 NY2d 1001 [1983]).

CPLR 3126 permits a court to preclude evidence on insufficiently particularized claims unless the party serves a further bill of particulars.

Jones v. Le-France Leasing Ltd. Partnership · filed 2011-02-22

Ordered that the order is modified, on the law, ... (2) by deleting the provision thereof denying that branch of the separate motion of the defendant Alliance Elevator Company which was pursuant to CPLR 3126 to unconditionally preclude the plaintiffs from introducing evidence concerning item numbers 8 and 9 of the plaintiffs’ third supplemental bill of particulars, and substituting therefor a provision granting that branch of the motion to the extent of precluding the plaintiffs from introducing evidence concerning those items unless the plaintiffs serve a further bill of particulars, ... Ordered that the plaintiffs shall provide the defendant Alliance Elevator Company with the names and addresses of “all witnesses with regard to plaintiffs’ claim of support (economic, monetary or otherwise) provided to any distributee” and serve upon that defendant a further bill of particulars with respect to items 8 and 9 of their third supplemental bill of particulars, within 30 days after service upon them of a copy of this decision and order.

Section 3126 permits dismissal when a conditional preclusion order bars a party from presenting the evidence needed to establish its claims.

Hu v. Sadiqi · filed 2011-04-12

Since the conditional order of preclusion precluded the tenants from offering any evidence or testimony at trial, they would be unable to establish a prima facie case on their cross claims.

Section 3126 permits a court to conditionally strike defendants’ answers for failing to produce witnesses for examinations before trial, while giving them a final opportunity to comply.

Garcia v. City of New York · filed 2011-02-03

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered December 24, 2009, which granted plaintiffs motion pursuant to CPLR 3126 to strike the answers of defendants City of New York, 1515 Bruckner Blvd. LLC, Citywide Contractors LLC and Kaila Construction Corporation unless they appear for their respective examinations before trial within 60 days of service of a copy of the order, unanimously affirmed, without costs.

Section 3126 permits a conditional preclusion order to become absolute when a party misses its discovery deadline, though the party may obtain relief by showing a reasonable excuse and a meritorious claim or defense.

Rothman v. Westfield Group · filed 2012-12-05

Here, the plaintiffs failed to comply with the directives contained in the conditional order in a timely fashion, and the conditional order became absolute (see Gibbs v St. Barnabas Hosp., 16 NY3d at 78; Pugliese v Mondello, 67 AD3d 880 [2009]).

CPLR 3126 permits an answer to be conditionally stricken for failure to appear at a deposition; the party may obtain relief by showing a reasonable excuse for noncompliance and a potentially meritorious defense.

Gross v. Johnson · filed 2013-01-30

The defendant also demonstrated a reasonable excuse for her failure to appear at her deposition by the date set forth in the order dated September 3, 2010, conditionally striking the answer, and the existence of a potentially meritorious defense to the action (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 80 [2010]; Kirkland v Fayne, 78 AD3d 660, 661 [2010]; Lerner v Ayervais, 16 AD3d 382 [2005]).

Section 3126 permits a conditional order of preclusion as a sanction for failing to comply with discovery orders.

General Motors Acceptance Corp. v. New York Central Mutual Fire Insurance · filed 2013-03-19

The motion court properly exercised its discretion in granting a conditional order at that time as a sanction for defendant’s noncompliance with discovery (CPLR 3126; see Gibbs v St. Barnabas Hosp., 16 NY3d 74 [2010]).

Section 3126 permits a court to conditionally strike an answer for failure to provide ordered disclosure; the answer is stricken if the party misses the deadline.

LEGARRETA, M.D., EDWARD A. v. NEAL, M.D., MELISSA A.L. · filed 2013-07-05(3)

Inasmuch as the temporary stay had no effect on the January 2012 conditional order, which was self-executing, defendants’ answer was stricken when they failed to produce the patient list by February 1, 2012 (see Gibbs, 16 NY3d at 82-83; Foster v Dealmaker, SLS, LLC, 63 AD3d 1640, 1641, lv denied 15 NY3d 702; Zouev v City of New York, 32 AD3d 850, 850-851).

A conditional discovery preclusion order becomes absolute when a party misses its deadline; relief requires a reasonable excuse and a potentially meritorious claim, and dismissal may follow if preclusion prevents a prima facie case.

SRN Realty, LLC v. Scarano Architect, PLLC · filed 2014-04-02

Here, the plaintiff failed to provide a reasonable excuse for its default and failed to demonstrate the existence of potentially meritorious cause of action. Since the plaintiff is precluded from offering evidence at trial with respect to information sought in discovery and will be unable, without that evidence, to establish a prima facie case, the Supreme Court properly directed the dismissal of the complaint (see Keenan v Fiorentino, 84 AD3d at 741; see also Gilmore v Garvey, 31 AD3d 381 [2006]).

Section 3126 permits a money judgment as a sanction for disobeying court disclosure orders.

GROTON COMMUNITY HEALTH CARE CENTER v. BEVIER, PHILLIP · filed 2016-11-10

The court’s award of a money judgment against respondent was proper whether such award is conceived of as an order of default judgment rendered pursuant to CPLR 3215, or as a sanction imposed pursuant to CPLR 3126 for respondent’s disobedience of the court’s two disclosure orders (see generally Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 571-572; Tony’s Ornamental Iron Works v National Bldg. & Restoration Corp., 237 AD2d 909, 909), and/or as a fine for respondent’s contempt of court and corresponding calculated effort to defeat, impair, impede, or prejudice petitioner’s rights in the proceeding (see Judiciary Law §§ 753 [A]; 773; see also Riverside Capital Advisers, Inc. v First Secured Capital Corp., 57 AD3d 870, 871, lv dismissed 12 NY3d 842; see generally Matter of Department of Hous. Preserv. & Dev. of City of N.Y. v Deka Realty Corp., 208 AD2d 37, 43).

Section 3126 permits a money judgment as a sanction for disobeying court orders to disclose information.

Groton Community Health Care Center, Inc. v. Bevier · filed 2016-11-10

The court’s award of a money judgment against respondent was proper whether such award is conceived of as an order of default judgment rendered pursuant to CPLR 3215, or as a sanction imposed pursuant to CPLR 3126 for respondent’s disobedience of the court’s two disclosure orders (see generally Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 571-572 [1978]; Tony’s Ornamental Iron Works v National Bldg. & Restoration Corp., 237 AD2d 909, 909 [1997]), and/or as a fine for respondent’s contempt of court and corresponding calculated effort to defeat, impair, impede, or prejudice petitioner’s rights in the proceeding (see Judiciary Law §§ 753 [A]; 773; see also Riverside Capital Advisers, Inc. v First Secured Capital Corp., 57 AD3d 870, 871 [2008], lv dismissed 12 NY3d 842 [2009]; see generally Matter of Department of Hous. Preserv. & Dev. of City of N.Y. v Deka Realty Corp., 208 AD2d 37, 43 [1995]).

CPLR 3126 permits a conditional order striking an answer for failure to provide discovery, with a specified time to comply before the sanction takes effect.

Vaca v. Village View Housing Corp. · filed 2016-12-08

However, the conditional order should provide that the motion is granted “ ‘unless’ within a specified time the resisting party submits to the disclosure,” and we modify solely to that effect (Gibbs v St. Barnabas Hosp., 16 NY3d 74, 79 [2010]; CPLR 3126; see also Keller v Merchant Capital Portfolios, LLC, 103 AD3d 532 [1st Dept 2013]).

CPLR 3126 permits conditional dismissal for a discovery violation when there is a clear showing of willful or contumacious conduct.

Kim v. A. Johnson Plumbing & Heating, Inc. · filed 2017-03-09(3)

Where a party “wil [1] fully fails to disclose information which the court finds ought to have been disclosed” (CPLR 3126), a trial court may “fashion an appropriate remedy,” which may include conditional dismissal of the action (Congleton v United Health Servs. Hosps., 67 AD3d 1148, 1150 [2009]; see CPLR 3126 [3]). Because resolution of an action on the merits is favored, however, in order for such a dismissal to be appropriate, “there must be a clear showing of willful or contumacious conduct” (Kinge v State of New York, 302 AD2d 667, 669 [2003]; see Gokey v DeCicco, 24 AD3d 860, 861 [2005]; Altu v Clark, 20 AD3d 749, 750 [2005]).

When a conditional preclusion order specifies a sanction for failure to provide discovery, the court may not impose a harsher sanction absent a change in circumstances.

Felice v. Metropolitan Diagnostic Imaging Group, LLC · filed 2019-03-20

However, where, as here, a conditional order of preclusion specifies a penalty for the failure to comply, absent a change in circumstances, it is inappropriate for the court to impose a harsher penalty ( see Brothers v Bunkoff Gen. Contrs. , 296 AD2d 764, 765; Mendizabal v Nabila , 160 AD2d 846, 849). The Supreme Court improvidently exercised its discretion in barring the plaintiff from offering any evidence for any claim premised on the introduction of or which relies on the audio files the plaintiff failed to produce. Instead, the appropriate sanction was the one set forth in the conditional order of preclusion, which precluded the plaintiff from using the audio files and corresponding transcripts at trial unless she produced these items by a date certain, which she failed to do.

Under CPLR 3126, a conditional preclusion order becomes absolute when a party fails to provide the required discovery on time; dismissal may follow when the party is barred from offering evidence at trial.

Torres v. Dayton Hudson Corp. · filed 2019-04-03

The order granted that branch of the motion of the defendants Dayton Hudson Corporation and Target Corporation which was pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them. ... In sum, based on the plaintiff's failure to comply with the conditional order of preclusion, we agree with the Supreme Court's determination to grant that branch of the Target defendants' motion which was to dismiss the complaint insofar as asserted against them on the basis that under the order of preclusion, the plaintiff was prohibited from offering any evidence at trial ( see id. ).

Section 3126(2) permits an order precluding evidence for failure to comply with discovery demands; relief from a conditional preclusion order requires a reasonable excuse and a meritorious claim.

Castro v. Parkview Commons Condo · filed 2019-04-25(2)

Plaintiff failed to comply with a self-executing order directing him, inter alia, to respond to various outstanding discovery demands within 45 days or be precluded from offering evidence as to liability and damages at trial ( see CPLR 3126[2]). Plaintiff failed to demonstrate a reasonable excuse for his non-compliance and a meritorious claim and therefore may not be relieved from the dictates of the conditional order ( see Gibbs v St. Barnabas Hosp. , 16 NY3d 74, 80 [2010]).

A conditional dismissal order for failure to provide discovery becomes absolute when a party misses its deadline.

Williams v. Davita Healthcare Partners, Inc. · filed 2019-05-01

Where a party fails to comply with the terms of a conditional order prior to the deadline imposed therein, the conditional order becomes absolute ( see Wilson v Galicia Contr. & Restoration Corp. , 10 NY3d 827, 830; Tanriverdi v United Skates of Am., Inc. , 164 AD3d 858, 859; Scholem v Acadia Realty L.P. , 144 AD3d 1012, 1012-1013; Mona & Jack's Clothing, Inc. v Ola, Inc. , 133 AD3d 642, 643).

CPLR 3126 permits a court to issue a conditional order of preclusion as a remedy for failure to comply with discovery.

Rachimi v. Sacher · filed 2019-05-30

Order, Supreme Court, New York County (Judith N. McMahon, J.), entered March 22, 2018, which granted defendant Howard L. Sacher, D.O.'s motion to dismiss the complaint pursuant to CPLR 3126 to the extent of issuing a conditional order of preclusion, unanimously affirmed, without costs. ... In light of the preference that matters be decided on the merits, a conditional order of preclusion was within the ambit of available remedies for the trial court to impose.

CPLR 3126 permits a conditional order of preclusion when repeated failure to comply with discovery demands requires court intervention.

Kayantas v. Restaurant Depot, LLC · filed 2019-06-05

The defendant's repeated failure to comply with discovery demands, requiring court intervention, justified the imposition of a conditional order of preclusion. Accordingly, the Supreme Court providently exercised its discretion in, upon reargument, adhering to its determination conditionally granting that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the defendant's answer unless the defendant complied with the discovery demands dated April 27, 2017, May 25, 2017, and June 22, 2017, and denying that branch of the defendant's motion which was for a protective order.

A conditional dismissal under CPLR 3126 becomes absolute when a party fails to comply with its terms; to avoid dismissal, the party must show a reasonable excuse and a potentially meritorious cause of action.

Zaher v. Perri · filed 2019-08-07

To avoid the adverse impact thereof, the plaintiff was required to demonstrate a reasonable excuse for his default and the existence of a potentially meritorious cause of action ( see Archer Capital Fund, L.P. v GEL, LLC , 95 AD3d at 801; Wei Hong Hu v Sadiqi , 83 AD3d 820, 821). The plaintiff failed to make such a showing. Accordingly, we agree with the Supreme Court's determination to grant the defendant's motion pursuant to CPLR 3126 to dismiss the complaint.

Section 3126(3) permits a conditional order of dismissal when a party repeatedly fails to comply with orders to appear for a deposition.

Mehler v. Jones · filed 2020-03-26(3)

The motion court providently exercised its discretion in issuing a conditional order of dismissal, in light of plaintiff's history of noncompliance with court orders requiring her to appear for a further deposition ( see CPLR 3126[3]; Fish & Richardson, P.C. v Schindler , 75 AD3d 219, 220 [1st Dept 2010]).

Section 3126 permits a court to conditionally dismiss a complaint when plaintiffs refuse to comply with an order compelling depositions.

Serrone v. City of New York · filed 2020-04-29

Further, the Supreme Court providently exercised its discretion in granting the defendant's cross motion for summary judgment dismissing the complaint to the extent of directing dismissal of the complaint in the event the plaintiffs failed to appear for depositions on or before a set date based upon the plaintiffs' refusal to comply with a prior order of the court compelling depositions ( see CPLR 3126; Flores v Velez , 111 AD3d 599; Raville v Elnomany , 76 AD3d 520).

A conditional order striking an answer becomes absolute when the defendant fails to comply by the specified date.

Humble Monkey, LLC v. Rice Sec., LLC · filed 2020-06-18(3)

When defendants failed to comply with the self-executing, conditional order striking their answer if they did not produce a witness for deposition by a date certain, the order became absolute ( Diaz v Maygina Realty LLC , 181 AD3d 478 [1st Dept 2020]; CPLR 3126[3]).

Section 3126(3) permits a court to dismiss an action at its discretion if a party fails to comply with a conditional order compelling compliance.

Fortune v. New York City Health & Hosps. Corps. · filed 2021-02-18(3)

Rather, the appropriate course is to request a conditional order compelling compliance, which can result in dismissal of the action at the discretion of the court ( see CPLR 3126[3]; see also Tewari , 75 NY2d at 13-14 [Kaye, J., concurring]; Bowles v State of New York , 208 AD2d at 443).?

Under CPLR 3126, a conditional preclusion order becomes absolute when a party misses its discovery deadline; relief requires a reasonable excuse and a potentially meritorious claim.

Martin v. Dormitory Auth. of the State of N.Y. · filed 2022-08-10

Consequently, the conditional order became absolute on February 14, 2020, and to be relieved from the adverse impact of the conditional order, the plaintiff was required to demonstrate a reasonable excuse for failing to comply with the conditional order and a potentially meritorious cause of action ( see Drummond v Winiarsky , 169 AD3d 1005).

Section 3126 permits a conditional discovery preclusion order to become absolute upon noncompliance; relief then requires a reasonable excuse and a potentially meritorious defense.

Western Union N. Am. v. Locust Val. Tabacco, Inc. · filed 2022-10-19

However, as the court observed, the conditional order of preclusion became absolute upon Ahmed's failure to comply therewith ( see State Farm Mut. Auto. Ins. Co. v Anikeyeva , 130 AD3d 1007, 1008; Lee v Arellano , 18 AD3d 620, 621). To avoid the adverse impact resulting from the conditional order of preclusion becoming absolute, Ahmed was required to demonstrate a reasonable excuse for his default in complying with the terms of that order and a potentially meritorious defense to the amended complaint ( see Lagona v Village of Garden City , 203 AD3d 1038; State Farm Mut. Auto. Ins. Co. v Anikeyeva , 130 AD3d at 1008; Lee v Arellano , 18 AD3d at 621). Ahmed did neither.

A party may obtain relief from a conditional preclusion order under CPLR 3126 by showing a reasonable excuse for the discovery failure and a potentially meritorious claim or defense.

C Castle Group Corp. v. Herzfeld & Rubin, P.C. · filed 2022-12-28

Similarly, to be relieved of the adverse impact of the conditional order, a party must demonstrate "(1) a reasonable excuse for the failure to produce the requested [discovery] and (2) the existence of a meritorious claim or defense" ( Gibbs v St. Barnabas Hosp. , 16 NY3d 74, 80; see Fortino v Wheels, Inc. , 204 AD3d 756, 757-758). ... Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiffs' motions to extend their time to respond to the notice to admit and to vacate so much of the order dated January 15, 2019, as conditionally granted that branch of the motion of the defendants Herzfeld & Rubin, P.C., Herbert Rubin, Arthur Strauss, Scott Hur, and Anja Wiesenberg which was pursuant to CPLR 3126 for an order of preclusion.

Under CPLR 3126, a conditional discovery preclusion order becomes absolute when a party misses its deadline; relief requires a reasonable excuse and a potentially meritorious cause of action.

Rangel v. Target Corp. · filed 2023-05-03

Thus, the conditional order became absolute, and to be relieved from the adverse impact of the conditional order, the plaintiff was required to demonstrate a reasonable excuse for failing to comply with the conditional order and a potentially meritorious cause of action ( see Martin [*3]v Dormitory Auth. of the State of N.Y. , 208 AD3d at 577-578). ... Accordingly, the Supreme Court properly granted the defendant's motion to dismiss the complaint pursuant to CPLR 3126 ( see McIntosh v New York City Partnership Dev. Fund Co., Inc. , 165 AD3d 1251, 1253).

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

Ortiz v. 1818 Bath Ave., LLC · filed 2023-10-04

"To be relieved of the adverse impact of a conditional order, a defaulting [*2]plaintiff must demonstrate a reasonable excuse for the failure to comply with the order and the existence of a potentially meritorious action" ( Martin v Dormitory Auth. of the State of N.Y. , 208 AD3d at 577 [internal quotation marks omitted]; see Gibbs v St. Barnabas Hosp. , 16 NY3d 74, 80).

Section 3126 permits preclusion or dismissal for discovery violations, but the party seeking preclusion must establish noncompliance with a conditional order.

Sokolnik v. Voronova · filed 2023-11-29(3)

"CPLR 3126 broadly empowers a trial court to craft a conditional order of preclusion" ( Robert v Azoulay Realty Corp. , 209 AD3d 781, 785 [internal quotation marks omitted]). ... "However, the burden of establishing noncompliance rests with the party seeking preclusion" ( id. ). ... Given the parties' failed efforts to schedule depositions in accordance with the conditional order, the defendant failed to establish that the plaintiff "violated the conditional order of preclusion or otherwise willfully and contumaciously failed to comply with discovery" ( Robert v Azoulay Realty Corp. , 209 AD3d at 785-786; see Cannon v 111 Fulton St. Condominium, Inc. , 162 AD3d at 840; Marerro v City of New York , 287 AD2d 298, 298).

Section 3126 permits a court to order dismissal of a complaint for failure to complete discovery, with dismissal taking effect automatically if the party misses the court’s deadlines.

De L'ero v. Nelson, Robinson Á El Ashmway PPLC · filed 2024-02-20

Therefore, the defendants’ motion is granted to the extent that the complaint shall be dismissed pursuant to CPLR 3126 and 3216 unless the plaintiff completes all discovery and files a Note of Issue as set forth below. ... This order shall be self-executing, and become absolute upon plaintiff’s failure to comply, without the necessity of further motion practice.

CPLR 3126 permits preclusion when a party fails to comply with a conditional discovery order and cannot show a reasonable excuse and a potentially meritorious defense.

Marzilliano v. Place to Beach · filed 2024-07-17(2)

Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to preclude the defendants from offering evidence at trial, testifying at trial, and submitting an affidavit in response to any dispositive motion.

Section 3126 permits dismissal when a party fails to comply with a conditional discovery order and cannot show a reasonable excuse; the court need not separately consider prejudice or willfulness.

630 W. 52nd LLC v. Fresh Inventory Servs., LLC · filed 2025-01-02

Supreme Court providently exercised its discretion in dismissing the complaint and denying plaintiff's cross-motion to vacate (CPLR 3126). ... In light of the conditional order, we also reject plaintiff's argument that the court should have considered prejudice and willfulness ( see Keller v Merchant Capital Portfolios, LLC , 103 AD3d 532, 533 [1st Dept 2013]; Diaz v Maygina Realty LLC , 181 AD3d 478, 479 [1st Dept 2020]). ... Given plaintiff's failure to timely produce documents — a repeated pattern by plaintiff in this action — it was obligated to demonstrate a reasonable excuse for its failure to comply with discovery obligations, yet failed to do so ( see Keller , 103 AD3d at 533; Fish & Richardson, P.C. v Schindler , 75 AD3d 219, 222 [1st Dept 2010]).

Section 3126 permits dismissal when a party fails to comply with a conditional discovery order and does not show a reasonable excuse.

Gilmore-Thompson v. Briarwood MP, LLC · filed 2025-04-16

Further, the plaintiff failed to demonstrate a reasonable excuse for her 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 Vallejo v Uzzi , 213 AD3d at 796-797). ... Accordingly, the Supreme Court, upon reargument, properly adhered to its prior determination granting the defendants' motion pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against them.

CPLR 3126 permits a conditional dismissal order for failure to comply with discovery without a finding of willfulness.

Hojas v. Jones · filed 2025-07-16

Here, the Supreme Court providently exercised its discretion in issuing a conditional dismissal order directing the plaintiff's compliance with the order dated December 20, 2022. Contrary to the plaintiff's contention, the court properly included a conditional dismissal provision in that order without making a finding of willfulness ( see Robert v Azoulay Realty Corp. , 209 AD3d 781, 785; Matter of Metro-North Train Acc. of Feb. 3, 2015 , 178 AD3d 929, 931).

Section 3126 permits preclusion when a party fails to comply with a conditional discovery order; the party may avoid preclusion by showing a reasonable excuse and a meritorious claim or defense.

Monge v. Bogopa-Manhattan, Inc. · filed 2025-08-27(2)

Here, the defendant's submissions were sufficient to demonstrate that the plaintiff failed to comply with the conditional order of preclusion and that, upon noncompliance, its terms became absolute ( see Wilson v Galicia Contr. & Restoration Corp. , 10 NY3d at 830).

Under CPLR 3126, a conditional preclusion order becomes absolute when a party misses its discovery deadline; relief requires a reasonable excuse for the failure to comply.

Alston v. New York City Tr. Auth. · filed 2025-10-22

Here, by providing the demanded materials in August 2023, which was 16 months after they were initially requested and 3 months after the date certain set in the conditional order of preclusion, NYCTA failed to comply with the conditional order of preclusion.

A preclusion order that expressly requires a further motion under CPLR 3126(2) does not take effect automatically.

Saint Cloud v. Koehler · filed 2026-02-11(2)

Contrary to the plaintiff's contention, the order dated August 2, 2022, was not a self-executing order of preclusion but, instead, expressly required an additional motion pursuant to CPLR 3126(2) ( see Degachi v Faridi , 230 AD3d 634, 635).

Section 3126 generally permits conditional preclusion when a party has a history of delaying discovery.

Santiago v. NYU Coll. of Dentistry · filed 2026-03-16

The sanction of conditional preclusion should generally be imposed only where a party has evinced a history of dilatory conduct in the discovery process.

CPLR 3126 permits a monetary penalty and conditional striking of an answer for extensive, willful failure to meet discovery obligations.

Deans v. Jamaica Hospital Medical Center · filed 2009-07-28(3)

The imposition of a penalty in the sum of $10,000 upon the defendant, payable to the plaintiffs, is warranted under the circumstances (see CPLR 3126; Adzer v Rudin Mgt. Co., Inc., 50 AD3d at 1072; Figdor v City of New York, 33 AD3d 560, 560-561 [2006]; DeCintio v Ahmed, 276 AD2d 463, 464 [2000]), and the defendant’s answer should have been stricken unless it paid a penalty and produced the witness specified above (see Trataros Constr., Inc. v New York City School Constr. Auth., 46 AD3d 872, 873 [2007]).

CPLR 3126(2) leaves the nature and degree of a disclosure penalty to the trial court’s sound discretion.

Williams v. New York City Transit Authority · filed 2008-12-30(2)

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the Supreme Court (see CPLR 3126 [2]; Kihl v Pfeffer, 94 NY2d 118, 122-123 [1999]; Suazo-Alvarez v Nordlaw, LLC, 48 AD3d 670, 670-671 [2008]; Lotardo v Lotardo, 31 AD3d 504 [2006]).

Section 3126 gives trial courts broad discretion to choose the nature and degree of a disclosure penalty.

Lamb v. Maloney · filed 2007-12-26

Trial courts are given broad discretion in determining the nature and degree of the penalty to be imposed pursuant to CPLR 3126 (see Mayers v Consolidated Charcoal Co., 154 AD2d 577 [1989]).

CPLR 3126 permits a court to fashion an appropriate remedy for willful failure to obey a disclosure order; the choice of remedy is reviewed for clear abuse of discretion.

D'Orazio v. Mainetti · filed 2007-04-12

As for plaintiffs appeal, CPLR 3126 authorizes the fashioning of an appropriate remedy when a party has willfully failed to obey a disclosure order, and the trial court’s choice of remedy ... will not be disturbed unless there is a clear abuse of discretion (see Moak v Raynor, 28 AD3d 900, 903-904 [2006]; Cavanaugh v Russell Sage Coll., 4 AD3d 660, 660 [2004]). Finding none here, we discern no error.

Section 3126 permits preclusion of evidence and an adverse inference when willful discovery noncompliance can be inferred from failure to obey court orders and inadequate excuses.

Dolny v. Dolny · filed 2006-09-12(1), (2)

The Supreme Court providently exercised its discretion in ...granting those branches of the defendant’s motion which were to preclude the plaintiff from offering evidence at trial with respect to requested documents which had not been produced, for an inference in favor of the defendant on all issues related to those documents, and for an award of an attorney’s fee to the defendant (see CPLR 3126 [1], [2]). The plaintiffs willful and contumacious conduct could be inferred from her failure to comply with court orders directing her to comply with outstanding discovery demands and the inadequate excuses offered for her failure to comply (see Stever v Stever, 10 AD3d 358 [2004]; Caccioppoli v Long Is. Jewish Med. Ctr., 271 AD2d 565 [2000]; Kingsley v Kantor, 265 AD2d 529 [1999]).

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

Padovano v. Teddy's Realty Associates, Ltd. · filed 2006-07-11

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the court (see CPLR 3126; Reyes v Vanderbilt, 303 AD2d 391 [2003]; Solomon v Horie Karate Dojo, 283 AD2d 480, 480-481 [2001]).

CPLR 3126 permits a court to extend the time to comply with a discovery order instead of dismissing the complaint for noncompliance.

Kswani v. Lutheran Medical Center · filed 2006-03-07

Its order merely extended the plaintiffs time to comply with the prior order dated June 24, 2004, which was properly within the court’s discretion (see Brandes v North Shore Univ. Hosp., 22 AD3d 777 [2005]; Rivera v Yeshiva & Kollel Harbotzas Torah, 10 AD3d 715 [2004]).

CPLR 3126 permits denial of summary judgment as a disclosure sanction when a party cannot be located for a deposition.

McGarr v. Guardian Life Insurance Co. of America · filed 2005-06-23

Indeed, since defense counsel was unable to locate Downing, Downing could not have authorized counsel to make a summary judgment motion on his behalf. Under the circumstances, an appropriate sanction is to deny the summary judgment motion as to Downing (see e.g. Crawford v Toyota Motor Corp., 283 AD2d 184 [2001]).

Section 3126 gives courts discretion to set a penalty for disobeying a discovery order, including dismissal if a party fails to attend a deposition.

MOPS Medical Supply v. GEICO Insurance · filed 2004-05-03

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who has disobeyed a court order is a matter within the discretion of the court (Jaffe v Hubbard, 299 AD2d 395, 396 [2d Dept 2002]). ... Accordingly, the court holds that the correct remedy in this case is to permit plaintiff an opportunity to appear for a deposition, subject to the penalty of dismissal of plaintiffs case if it fails to do so.

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

Halleran v. Narula · filed 2004-04-26

The nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter generally left to the discretion of the Supreme Court (see Concordia Gen. Contr. Co. v Roberta, 4 AD3d 494 [2004]; Robinson v Pediatric Assoc. of Irwin Ave., 307 AD2d 1029 [2003]; Riley v ISS Intl. Serv. Sys., 304 AD2d 637 [2003]; Kingsley v Kantor, 265 AD2d 529 [1999]).

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

Landrigen v. Landrigen · filed 1991-05-09

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter lying within the sound discretion of the trial court (Associated Mut. Ins. Co. v Dyland Tavern, 105 AD2d 892, 893). Under the circumstances presented, we are unable to conclude that Family Court abused its discretion.

CPLR 3126 permits sanctions when a party willfully refuses to comply with discovery orders.

Cataldo v. Budget Rent A Car of Delaware, Inc. · filed 1991-02-11

We conclude that the imposition of this sanction was appropriate pursuant to CPLR 3126, as the record reveals that the appellants willfully refused to comply with the court’s directives (see, Stojowski v Fair Oaks Dev. Corp., 151 AD2d 661; Homburger v Levitin, 130 AD2d 715; Horowitz v Camp Cedarhurst & Town & Country Day School, 119 AD2d 548).

CPLR 3126 permits a discretionary sanction for failure to comply with discovery orders.

Jacobs v. Levy · filed 1989-10-30

The $750 award was in the nature of a sanction for failure to comply with discovery orders (see, CPLR 3126; Associated Mut. Ins. Co. v Dyland Tavern, 105 AD2d 892, 893; Renford v Lizardo, 104 AD2d 717, 718). We find that the imposition of that sanction was not an improvident exercise of discretion.

Section 3126 permits a court to impose the cost of an examination transcript on a party who fails to appear for a scheduled examination without a reasonable excuse.

Horowitz v. Horowitz · filed 1989-06-19

We find that the imposition upon the plaintiff of the cost of the transcript of his examination before trial was a proper exercise of the court’s discretion based upon the plaintiff’s unexplained failure to provide a reasonable excuse for his failure to appear at a previously scheduled examination before trial (see, CPLR 3126).

Section 3126 does not require a penalty when interrogatory responses are sufficient and the requesting party is merely dissatisfied with them.

McCormack v. 61 West 62 Owners Corp. · filed 1990-05-10

We see no clear abuse of discretion by the IAS court in finding that defendant sufficiently responded to the interrogatories. Plaintiff’s dissatisfaction with the answers is not a sufficient basis upon which to disturb the court’s decision declining to impose any penalty pursuant to CPLR 3126.

Section 3126 gives trial courts discretion to supervise disclosure, subject to review for abuse of discretion.

Yankee Lake Co. v. Yankee Lake Ass'n · filed 1988-10-20

The first order falls within Supreme Court’s discretionary power to supervise disclosure (CPLR 3126), and since we find no abuse of discretion, the order should be affirmed.

Section 3126 does not warrant summary judgment for incomplete compliance with a preclusion order without a showing that the failure was willful or deliberate.

Lawyer v. Albany OK Cab Co. · filed 1988-07-21

Additionally, defendants made no showing that plaintiffs’ failure to fully comply with the preclusion order was willful or deliberate (see, CPLR 3126; Farrell v New York State Elec. & Gas Corp., 120 AD2d 778; Town of E. Greenbush v Ashland Chem. Co., 99 AD2d 604).

CPLR 3126 sanctions require an unreasonable refusal to obey a court order to disclose.

Tokarczyk v. St. Barnabas High School · filed 1986-03-25

Moreover, CPLR 3126 contemplates the imposition of sanctions only in the case of an unreasonable refusal to obey a court order to disclose. Here, there was no prior order requiring disclosure.

Section 3126 authorizes just sanctions for a party’s dilatory failure to comply with a discovery order.

Burrows v. City of New York · filed 1985-02-20

The court realizes its authority to impose such sanctions under CPLR 3126 “[to] make such orders with regard to the failure or refusal as are just”, and there is a plethora of case law wherein sanctions were fixed as a matter of course.

CPLR 3126 permits a court to strike a defendant’s answer for failure to comply with a discovery order.

Klein v. Mount Sinai Hospital · filed 1986-06-03

In this malpractice action, defendant failed to comply with a conditional order of the court dated May 23, 1984, directing it to furnish items of discovery within 20 days of the service of a copy of the order or have its answer stricken. Plaintiff, although maintaining that the order was "self-executing”, moved pursuant to CPLR 3126 to strike the answer for failure to comply with this order. ... We find the original conclusion to have been correct and the substituted one to have been an abuse of discretion and, therefore, reverse and reinstate the prior order.

Section 3126 permits a court to tailor sanctions for nondisclosure, including barring evidence on a particular point, when striking a newspaper’s answer would unduly burden its protection of a confidential source.

Oak Beach Inn Corp. v. Babylon Beacon, Inc. · filed 1984-05-10(2)

In this case there was no need for the court to strike the defendants’ answer and thus subject them to a default or summary judgment on the libel complaint. To the extent, as the plaintiffs belatedly contend, the defendants’ refusal to identify the letter writer may deprive them of evidence relevant to the issue of malice, other remedies are available. CPLR 3126 broadly permits a court to make such orders “as are just” including an order prohibiting the noncomplying party from “supporting or opposing designated claims”, or introducing evidence on a particular point (subd 2). Relief of this nature should adequately protect the plaintiffs’ interests without intolerably burdening the newspaper.

CPLR 3126 penalties require a willful failure to obey an order for disclosure.

Wasserman v. Manoco Co. · filed 1984-04-03

Although the record suggests that defendant’s counsel had not acted with the vigor and promptness that the circumstances required, we agree that the record fails to disclose that kind of willful failure to obey an order for disclosure that is a prerequisite to the imposition of penalties fixed pursuant to CPLR 3126.

Section 3126 permits dismissal for failure to answer interrogatories, but noncompliance may be excused if the information was unavailable despite a good faith effort to answer.

Electorque Associates, Inc. v. Arverne Houses, Inc. · filed 1979-12-31

Plaintiff’s clear failure to comply with the terms of the February 16 order is excusable only if the information sought was actually unavailable to plaintiff and it failed to discover that fact despite the good faith exercise of due diligence in attempting to frame its answers.

Section 3126 allows a court to condition denial of a motion to strike a complaint on the plaintiff answering outstanding interrogatories.

Giraud v. New York Blower Co. · filed 1983-08-01

Order modified, on the law, by (1) adding a provision thereto directing plaintiffs to furnish the answers to all interrogatories to the best of their ability and (2) deleting therefrom the provision which denied unconditionally appellant’s motion pursuant to CPLR 3126 and substituting therefor a provision denying appellant relief, on condition that plaintiffs comply with the provision that they furnish answers to the interrogatories.

CPLR 3126 permits striking an answer for willful failure to appear for a court-ordered examination, but the drastic sanction may warrant one final opportunity to comply.

Malizia v. Fasch · filed 1981-09-28

In view of the drastic nature of the sanction, the facts herein dictate that the defendant Victor Fasch be accorded one final opportunity to appear for an examination before trial (see Kress-Shoreview v Kleiman, 58 AD2d 763).

CPLR 3126 permits a monetary penalty and a final chance to attend a court-ordered examination before an answer is stricken when a party fails to adequately explain repeated absences.

Bolser v. Newport Trucking, Inc. · filed 1982-11-01

Therefore, the order imposing a penalty and granting appellant one final opportunity to comply before its answer would be stricken was not an abuse of discretion under CPLR 3126 (see Iessi v Marino, 42 AD2d 583; First Nat. State Bank of N. J. v Schwartzman, 60 AD2d 641; Tinkleman v Hudson Val. Winery, 80 AD2d 894; cf. Ortiz v New York City Health & Hosps. Corp., 72 AD2d 741, 742).

Section 3126 does not require dismissal for failure to produce a vehicle for an out-of-state inspection that the court finds inappropriate, even when the plaintiffs did not seek a protective order.

Cattat v. Alfa Romeo, Inc. · filed 1975-02-14

While not ruling that in a proper case out-of-State inspection might not be ordered, this court does not feel that such inspection should be available in this case, and, despite the fact that plaintiffs failed to move for a protective order, the court must deny defendant’s motion insofar as it relates to nonproduction of the vehicle in the State of New Jersey.

Section 3126 does not permit striking a defendant’s answer for failing to sign and return a deposition transcript.

Merck, Sharp & Dohme v. Whitted · filed 1973-11-07(3)

Plaintiff has sought to impose the sanctions outlined in CPLR 3126 (subd. 3) for this conduct of the defendant. This court has had occasion in the past to hold that a motion to strike an answer is not, in its opinion, the proper remedy for failure of a defendant to sign and return an examination before trial. ... For the reasons hereinabove set forth, the motion to strike is denied.

Section 3126 permits striking a pleading when a capable deponent willfully fails to sign a deposition and does not comply with an order to sign it.

Adamo v. Kirsch Beverages, Inc. · filed 1974-12-27(3)

This penalty is authorized under CPLR 3126 (subd. 3) for a party’s failure to disclose. ... A willful failure to sign by a physically and mentally capable deponent is a form of nondisclosure. ... Striking the pleadings is appropriate.

Section 3126 requires a willful failure to appear for an examination before trial to warrant dismissal.

Livingston v. Mayes · filed 1965-04-08

There is nothing in the record indicating that failure of plaintiffs to appear for examination before trial was that willful failure contemplated by the statute. (Civ. Prac. Act, § 299, now CPLR 3126.)

Section 3126 permits a court to strike an answer and direct judgment for failure to appear for an examination pursuant to notice, without a prior court order.

Fleming v. Fleming · filed 1966-05-11

I hold that the court has the power, as a matter of law, to strike the defendant’s answer and direct judgment in favor of the plaintiff by reason of her default in appearing for the examination before trial pursuant to notice served upon her attorney.

Section 3126 permits orders for failure to appear for examination only when they are just; sanctions should not unfairly harm a complying codefendant absent a showing of prejudice to the moving party.

Rogonia v. Ferguson · filed 1966-11-23

We cannot construe the statute as intending such a result since same provides that “ the court may make such orders with regard to the failure or refusal as are just ”. Justice will not result from penalizing to damage without recourse one defendant for the misfeasance of another in the course of litigation. Unless the court is made aware of (and from these papers we can elicit no showing in that regard) some disadvantage or disability imminent to plaintiff’s cause of action because of inability to examine the defendant Ferguson, we believe the motion should be denied in all respects, without any prejudice resulting therefrom.

CPLR 3126 does not treat a party's failure to appear for an examination as willful when the party was incarcerated at the scheduled time.

Obrenski v. Tushinsky · filed 1978-05-15

In view of the fact that defendant-appellant was incarcerated at the time that his examination before trial was scheduled pursuant to notice by plaintiffs-respondents, he did not willfully fail to appear for the examination within the meaning of CPLR 3126 and its related sections (see Goldner v Lendor Structures, 29 AD2d 978).

Section 3126 permits an application for penalties for a willful failure to disclose without first obtaining an order compelling disclosure under CPLR 3124.

Coffey v. Orbachs, Inc. · filed 1964-12-22

Where a notice for disclosure is ignored, the CPLR provides two remedies to the party serving such notice. He can proceed under CPLR 3124 to obtain an order to compel disclosure. In the alternative, an application can be made under CPLR 3126 for the imposition of the penalties therein provided for a willful failure to disclose.

Section 3126 treats a party’s sustained obstruction of an examination as refusal to obey disclosure orders and willful failure to disclose required information.

Warner v. Bumgarner · filed 1966-02-15

I further find that defendants’ conduct from the inception of these disclosure proceedings, taken as a whole, constitutes refusal to obey the orders of this court for disclosure and willful failure to disclose information which this court finds ought to have been disclosed, within the purview of CPLR 3126.

Section 3126 permits a court to give a party a final opportunity to complete disclosure, subject to conditions, instead of striking the party’s answer.

Bredin v. Buchman · filed 1969-04-10

Certainly, the conduct of the defendant and his attorneys may not be condoned but in the interests of justice and on the basis -of the aforesaid conditions, the defendant should .be given a final opportunity to submit to a completion of his examination and to produce the relevant and material documents and records. (See CPLR 3126.)

Section 3126(3) permits dismissal with prejudice when a party willfully fails to comply with a disclosure order.

In re the Estate of Porter · filed 1970-11-30(3)

Under all of the circumstances and in the exercise of its powers under subdivision 3 of CPLR 3126 the court hereby dismisses the petitioner’s claim, with prejudice.

CPLR 3126 provides penalties for refusing to comply with an order to disclose; it does not provide relief for failure to respond to a CPLR 3123 notice to admit.

Spawton v. James E. Strates Shows, Inc. · filed 1973-11-09

CPLB 3126 relies upon CPLR 3124 in that it provides for penalties for refusal to comply with an order to disclose. CPLR 3124 provides the means for compelling disclosure and obtaining such an order. This latter statutory provision relates to depositions, interrogatories and matters arising out of CPLR 3118, CPLR 3111, CPLR 3120, CPLR 3121. It does not apply to CPLR 3123.

Section 3126 permits penalties when a party willfully fails to submit to an examination before trial.

Sutton v. Cobb · filed 1975-12-18

The record justified Special Term’s finding that appellant willfully failed to submit to an examination before trial and was subject to the penalties for refusal to disclose (CPLR 3126).

Section 3126(1) permits a court to resolve a relevant issue against a party who refuses disclosure; striking the party’s answer may be too harsh when the withheld information concerns only one of several grounds for relief.

Greene v. Greene · filed 1976-06-28(1)

Consequently, the sanctions imposed against appellant (i.e., the unconditional striking of his answer and the ordering of an inquest in petitioner’s favor) were unduly harsh since, by the ordering of an inquest, appellant was improperly denied an opportunity to present evidence regarding the two remaining bases for relief.

Section 3126 permits striking a pleading for a disclosure failure only when the failure is willful.

Rodriguez v. Sklar · filed 1977-02-15

The court will not impose a sanction under CPLR 3126 unless the party’s omission to disclose was willful (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3126, p 646). Upon the record before us, there is some doubt whether defendants’ failure to appear for the examination was willful.

Section 3126 requires a willful refusal to disclose before a court strikes a party’s answer as a discovery sanction.

Queens Farms Dairy, Inc. v. Consolidated Edison Co. of New York, Inc. · filed 1978-05-15

CPLR 3126, under which plaintiff moved to strike defendant’s answer, clearly requires a willful refusal on the part of the adverse party to disclose information before such a drastic remedy will be ordered by the courts.

Section 3126 permits a conditional order striking a party’s answer when the party fails without excuse to produce relevant material.

Danahy v. Meese · filed 1981-10-30

It is material and relevant to the actions, therefore, and since defendant has offered no excuse for his failure to comply, the conditional order to strike his answers was properly granted.

Dismissal under CPLR 3126 is a severe remedy that is unwarranted without a showing of willful avoidance of disclosure; delay in seeking it may amount to laches.

Florea v. Bank of New York · filed 1982-03-11

Regarding defendant’s motion to dismiss the complaint on the ground that plaintiff Florea purposefully destroyed records relevant to the action, defendant is guilty of laches. Some 14 months have expired since the court ordered examination of this plaintiff for failure to produce documents, and four months have expired since the note of issue was filed. Also, this severe remedy is not warranted in the absence of a showing that plaintiff willfully attempted to avoid disclosure.

Section 3126 permits a court to sanction a party that ignores a disclosure notice, including by conditionally striking its pleadings.

Infinity Records, Inc. v. Pathe News, Inc. · filed 1982-11-09(3)

CPLR 3126 permits a court to impose sanctions where warranted when a notice of disclosure is ignored. ... In lieu of an outright striking of defendant’s answer, we believe that the conditions we have attached are appropriate in the circumstances.

Section 3126 requires a showing that a party’s failure to disclose was willful and contumacious before its answer may be struck.

Plainview Associates v. Miconics Industries, Inc. · filed 1982-11-22

CPLR 3126 requires a showing that the party’s failure to disclose was willful and contumacious (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3126:7, p 646).

CPLR 3126 permits dismissal for a willful failure to disclose, without a conditional order when one would serve no useful purpose.

Shakerley v. St. Peter's Hospital · filed 1982-12-23

On these facts, plaintiffs have demonstrated a willful failure to disclose information and the severest sanction of dismissal permissible under CPLR 3126 is appropriate. Plaintiffs, by their actions and conduct have indicated an abandonment of their litigation. Under these circumstances, a conditional order of dismissal would serve no useful purpose.

CPLR 3126 permits sanctions when a party willfully and contumaciously fails to obey a disclosure order.

Kramme v. Town of Hempstead · filed 1984-04-09

The county’s default was clearly willful and contumacious and, therefore, sanctions pursuant to CPLR 3126 were appropriate (see Will v County of Nassau, 90 AD2d 795; Balsam v Nicolosi Bldg. Co., 36 AD2d 533).

Section 3126 permits a court to preclude proof on matters a party refused to disclose unless the party complies with the disclosure demand.

Olshansky v. Ravera · filed 1985-01-22

Order reversed, insofar as appealed from, with costs, and motion granted to the extent of precluding defendants from offering any proof as to the items as to which disclosure was sought, unless plaintiff’s demand for disclosure is complied with by defendants.

CPLR 3126(2) permits preclusion of evidence if a party fails to produce discoverable materials in its possession or control.

Lundell v. Ford Motor Co. · filed 1986-05-12(2)

If the plaintiff has any such materials and fails to produce them for Ford’s discovery and inspection, then the plaintiff will be precluded from introducing them into evidence at trial (see, CPLR 3126 [2]).

Section 3126 permits a court to preclude a party from offering proof at an inquest if the party fails to provide ordered disclosure.

Grande v. Grande · filed 1987-04-13

Should disclosure not be forthcoming, the appropriate remedy in this case is to preclude the defendant from offering proof at the inquest.

Section 3126 authorizes appropriate sanctions for failure to comply with a disclosure order, including a monetary sanction when striking an answer is unwarranted.

Halpern v. Northtown Realty Co. · filed 1988-02-08

Failure to comply with a disclosure order authorizes the imposition of appropriate sanctions pursuant to CPLR 3126. We find that, under the circumstances herein, the drastic sanction of the striking of the defendant and third-party plaintiff’s answer was not warranted (see, Plainview Assocs. v Miconics Indus., 90 AD2d 825; Cinelli v Radcliffe, 35 AD2d 829). The Supreme Court therefore properly afforded it the opportunity to defend this matter on the merits. However, given the failure to comply with court-ordered disclosure, relief to the defendant and third-party plaintiff should have been conditioned upon the payment of a monetary sanction (see, Golden v Transport Taxi & Limousine Serv., 80 AD2d 870).

Section 3126 permits dismissal when a plaintiff’s unexplained delay in responding to interrogatories supports a finding that the failure to disclose was willful.

Wolfson v. Nassau County Medical Center · filed 1988-06-27

In the present case, the extensive nature of the plaintiffs’ delay in responding to the defendant’s interrogatories permits an inference that the delay was willful. The plaintiffs’ current attorneys allege absolutely no excuse for this delay and state only that they were not substituted for the plaintiffs’ former attorneys until after, or shortly before, the defendant made the motion pursuant to CPLR 3126. This circumstance neither explains nor excuses the unconscionable delay in prosecuting this action. The default can therefore be considered willful and no error as a matter of law was committed when the Supreme Court imposed the sanction of dismissal.

CPLR 3126 leaves the choice of disclosure penalty to the trial court’s discretion, but striking an answer requires a willful or contumacious failure to disclose.

Stathoudakes v. Kelmar Contracting Corp. · filed 1989-02-27

While the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is generally a matter left to the sound discretion of the trial court (see, Associated Mut. Ins. Co. v Dyland Tavern, 105 AD2d 892, 893), the penalty of striking an answer for failure to disclose is extreme and should only be levied where the failure has been willful or contumacious (see, Delaney v Automated Bread Corp., 110 AD2d 677, 678). In this case, the record does not show that Jackson’s failure to appear for examinations before trial, after the stay in bankruptcy had been lifted in October of 1987, was willful or contumacious.

CPLR 3126 permits dismissal of a complaint when a plaintiff deliberately and contumaciously disregards a disclosure demand and court order.

DeMasi v. Dine · filed 1989-11-20

It appears that the plaintiff has acted in a deliberate and contumacious manner justifying dismissal of the complaint pursuant to CPLR 3126.

CPLR 3126 (3) gives courts discretion to impose sanctions when a party refuses to comply with a disclosure order.

Anzalone v. Scientific Exterminating Services Corp. · filed 1990-07-09(3)

The Supreme Court properly exercised its discretion in denying the appellants’ motion. CPLR 3126 (3) affords the court discretion in imposing sanctions upon a party for refusal to comply with an order to disclose.

Section 3126 permits a monetary sanction for failure to disclose even when preclusion that effectively strikes an answer is unwarranted.

Demis v. Demis · filed 1990-12-27

Under the circumstances, the drastic sanction imposed by Supreme Court, dispositive of plaintiff’s action to set aside the agreement, is inappropriate. Defendant should be provided with one final opportunity to disclose. Nonetheless, we deem it appropriate to impose a sanction upon defendant in the amount of $3,500 (see, Mancusi v Middlesex Ins. Co., 102 AD2d 846; see also, CPLR 3126; Mrs. London’s Bake Shop v City of Saratoga Springs, 144 AD2d 749, 750).

Section 3126(2) permits a preclusion order that prevents a party who fails to disclose evidence from using it in any manner during the litigation.

Northway Engineering, Inc. v. Felix Industries, Inc. · filed 1991-02-19(2)

The sanctions for failure to comply with such a request are equally broad and include a preclusion order preventing the nondisclosing party from using the evidence in any manner during the course of the litigation (CPLR 3126 [2]; see also, e.g., Feingold v Walworth Bros., 238 NY 446).

Section 3126 permits dismissal of a complaint when a party willfully fails to comply with discovery.

Wolford v. Cerrone · filed 1992-06-04

Plaintiffs’ contention that Supreme Court abused its discretion in dismissing the complaint pursuant to CPLR 3126 is rejected. CPLR 3126 provides that when a discovery order is willfully disobeyed, the court may "make such orders * * * as are just”, including "an order striking out pleadings”.

CPLR 3126 permits dismissal when a party repeatedly fails to participate in pretrial disclosure despite requests and court orders.

Geltman v. St. Agnes Hospital · filed 1992-10-05

In spite of the repeated requests and orders directing the plaintiff to involve herself in pretrial disclosure, she did not. Accordingly, the complaint was properly dismissed pursuant to CPLR 3126.

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

Rossi v. Lin · filed 1993-01-25

It is well settled that the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is generally a matter left to the sound discretion of the trial court.

Section 3126 permits a court to impose sanctions in its discretion.

Lucombe v. Fleurant · filed 1993-11-08

Upon our review of the record, we conclude that the court did not improvidently exercise its discretion in imposing sanctions against the attorneys for the defendant Steve Mercier (see, CPLR 3126; 22 NYCRR 130-1.1).

Section 3126 permits sanctions for a willful failure to disclose, but an order addressing unproduced files must exclude files already produced.

Herzog v. Progressive Equity Funding Corp. · filed 1993-12-30(1), (2)

CPLR 3126 provides that when a party willfully fails to disclose information pursuant to a notice, "the court may make such orders * * * as are just”. ... We do agree with defendant, however, that Supreme Court’s order is too broad as it includes those files which it did produce. Therefore, we will modify the order by limiting its scope to the 76 files that defendant did not make available for inspection.

CPLR 3126 does not permit dismissal when a party diligently searches for requested documents, produces those it possesses, and cannot produce the rest.

Citibank (S.D.) N.A. v. Johnson · filed 1994-07-15

Given those circumstances, plaintiff did not refuse to obey an order for disclosure or willfully fail to disclose information (CPLR 3126), and defendant’s motion should have been denied.

A missed deposition does not warrant a CPLR 3126 sanction striking pleadings when the failure to disclose was not willful.

Chamberlain, D'Amanda, Oppenheimer & Greenfield v. Beauchamp · filed 1994-11-16

We conclude that defendants’ failure to attend the deposition as scheduled did not constitute a willful failure to disclose (see, CPLR 3126). Defendants reasonably requested an adjournment of the deposition to allow their new counsel time to review the file.

Section 3126(3) permits dismissal of a cross claim when a party willfully refuses to comply with court-ordered discovery.

Forestire v. Inter-Stop, Inc. · filed 1995-01-30(3)

Thus, we conclude that counsel’s refusal to comply with the court’s directives was willful and indefensible, warranting the extreme sanction of dismissal.

CPLR 3126 leaves the choice of disclosure penalty to the trial court’s discretion, but preclusion requires a willful or contumacious failure to disclose.

Moran v. Franklin General Hospital · filed 1995-04-24

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is generally a matter left to the discretion of the trial court. In addition, the penalty of preclusion is extreme and should only be levied when the failure to disclose has been willful or contumacious (see, Matter of Piscionere, 161 AD2d 596; Delaney v Automated Bread Corp., 110 AD2d 677). The defendant Robert Wulwick did not demonstrate that the plaintiffs’ failure to reveal the identity of the nonparty witness Helen Mattson was due to willful or contumacious behavior. Thus, the Supreme Court did not improvidently exercise its discretion by denying preclusion of her testimony at trial.

CPLR 3126 leaves the choice and severity of a penalty for discovery noncompliance to the trial court’s discretion.

Cherry v. Joseph S. Herbert & Co. · filed 1995-06-13

Finally, it is clear that the trial court properly exercised its discretion in denying the portion of defendant’s motion seeking dismissal of the complaint pursuant to CPLR 3126. The nature and degree of penalty, if any, to be imposed by a court pursuant to CPLR 3126 is a matter lying squarely within the discretion of the trial court (Associated Mut. Ins. Co. v Dyland Tavern, 105 AD2d 892, 893).

CPLR 3126 gives trial courts discretion to preclude late-disclosed evidence instead of dismissing claims when the opposing party has not shown prejudice.

Lamagna v. New York State Ass'n for the Help of Retarded Children, Inc. · filed 1995-12-18

Contrary to the defendants’ contention, the Supreme Court did not improvidently exercise its discretion by declining to dismiss the plaintiff’s remaining causes of action (see, Lamagna v New York State Assn. for Help of Retarded Children, 158 AD2d 588) pursuant to CPLR 3126 due to the plaintiff’s belated disclosure of certain tape recordings of conversations with potential witnesses.

CPLR 3126(2) does not support precluding a witness when the record fails to show a willful failure to disclose the witness.

Majcher v. Federal Machine Co. · filed 1996-12-30(2)

Supreme Court erred in granting that part of plaintiffs’ cross motion to preclude defendant’s use of the affidavits and testimony of a witness. The record fails to establish that defendant willfully failed to disclose the existence of that witness to support a preclusion order (see, CPLR 3126 [2]).

CPLR 3126 leaves the nature and degree of a disclosure penalty to the trial court’s discretion and permits dismissal for willful, contumacious obstruction of disclosure.

Davidson v. Aetna Casualty & Surety Insurance · filed 1997-03-10

The nature and 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, Associated Mut. Ins. Co. v Dyland Tavern, 105 AD2d 892). In this case, the plaintiff engaged in a pattern of conduct over the years which evidenced an intent to willfully and contumaciously obstruct and delay the progress of disclosure. Accordingly, it was not an improvident exercise of discretion to grant the defendant’s motion to dismiss (see, Porreco v Selway, 225 AD2d 752; Corsini v U-Haul Intl., 212 AD2d 288; Vatel v City of New York, 208 AD2d 524; Mills v Ducille, 170 AD2d 657).

CPLR 3126 leaves the nature and degree of a penalty for disobeying a disclosure order to the trial court’s discretion.

Kerin v. Long Island Rail Road · filed 1996-06-24

It is well settled that the nature and degree of the penalty to be imposed for failure to obey an order of disclosure is generally a matter left to the sound discretion of the trial court (see, CPLR 3126; Mayers v Consolidated Charcoal Co., 154 AD2d 577). Upon our review of the record, we conclude that the Supreme Court did not improvidently exercise its discretion in striking the defendant’s answer unless it complied with the court’s previous direction to disclose certain records.

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

Garcia v. Kraniotakis · filed 1996-10-07

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is generally a matter left to the discretion of the trial court.

CPLR 3126 permits dismissal or preclusion when a plaintiff’s failure to comply with discovery obligations is willful and contumacious.

Brady v. County of Nassau · filed 1996-12-16

Where a plaintiff’s conduct is found to be willful and contumacious, it is within the court’s discretion to grant either dismissal of the complaint or an order of preclusion (CPLR 3126; see, Zletz v Wetansen, 67 NY2d 711; Rivers v Embassy Club, 207 AD2d 876).

CPLR 3126 places the burden on the party seeking preclusion to show that the failure to disclose was willful, deliberate and contumacious.

Florio v. Newmark & Lewis · filed 1998-03-16

The burden of establishing that a failure or refusal to disclose was the result of willful deliberate and contumacious conduct rests with the party seeking the order of preclusion (see, Ahroni v City of New York, 175 AD2d 789). The record fails to establish such conduct.

Section 3126 permits a court to impose a sanction when a party fails without a reasonable explanation to comply with a disclosure order.

Galotti v. Galotti · filed 1998-06-01

Upon the plaintiffs claim that the defendant was not meeting her obligation, the court directed the plaintiff to provide his most recent Federal income tax return so each parties’ actual obligation could be determined, and advised the plaintiff that sanctions would be imposed if he failed to comply. The plaintiff failed to comply, and gave no reasonable explanation for his noncompliance. Under these circumstances, it was not an improvident exercise of discretion for the court to direct the plaintiff to pay 100% of the college expenses, although the parties’ agreement limited his obligation to 80% (see, CPLR 3126; Soto v City of Long Beach, 197 AD2d 615).

Section 3126(3) permits a court to condition dismissal on a party attending a physical examination and reimbursing charges for missed examinations.

Flynn v. Debonis · filed 1998-01-22(3)

In light of plaintiff’s conduct during discovery and her failure to submit to two IMEs, we find no abuse of discretion in Supreme Court’s order that plaintiff appear for a physical examination and reimburse defense counsel for charges assessed by defendants’ physician (see, Wolford v Cerrone, 184 AD2d 833, 834; Renford v Lizardo, 104 AD2d 717, 718).

Section 3126 leaves preclusion or dismissal to the court’s discretion when it regulates discovery.

Bielat v. Montrose · filed 1998-04-16

—Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered on or about August 19, 1997, which granted plaintiffs motion pursuant to CPLR 3103 for a protective order to the extent of setting a schedule limiting the time within which depositions were to be completed and denied defendants’ cross motion pursuant to CPLR 3126 for preclusion or dismissal, unanimously affirmed, without costs. In this needlessly protracted and contentious litigation, the determinations of the IAS Court regulating the conduct of discovery were well within its power to make and were appropriate exercises of discretion (see, CPLR 3103, 3126; Lipin v Bender, 84 NY2d 562, 570-571; Soper v Wilkinson Match, 176 AD2d 1025; Rossi v Lin, 189 AD2d 868).

Section 3126 permits a court to strike an answer for failure to disclose only when the failure is willful or contumacious.

Brennan v. McCarthy · filed 1998-11-23

Although the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is generally a matter left to the sound discretion of the trial court, the penalty of striking an answer for failure to disclose is extreme and should only be levied where the failure has been willful or contumacious (see, Stathoudakes v Kelmar Contr. Corp., 147 AD2d 690; Delaney v Automated Bread Corp., 110 AD2d 677). In this case, the record does not show that the defendants’ failure to produce certain information and documents responsive to the plaintiffs’ demands was willful or contumacious.

CPLR 3126 permits preclusion for failure to disclose only when the information should have been disclosed under article 31.

Brookman & Brookman, P. C. v. DeStefano · filed 1999-05-27

The court also properly denied defendants’ cross motion to the extent it sought to preclude plaintiff from using certain affidavits, since defendants did not establish that plaintiff failed to disclose information that ought to have been disclosed pursuant to CPLR article 31 (CPLR 3126).

CPLR 3126 leaves the choice and severity of disclosure penalties to the trial court’s discretion, but preclusion requires a willful or contumacious failure to disclose.

Kingsley v. Kantor · filed 1999-10-25

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is generally a matter left to the discretion of the Supreme Court. The penalty of preclusion is extreme and should only be imposed when the failure to disclose has been willful or contumacious (see, Garcia v Kraniotakis, 232 AD2d 369).

CPLR 3126 leaves the nature and degree of a penalty for refusal to obey a disclosure order or willful failure to disclose to the court’s discretion.

DeJulio v. Wulf · filed 1999-04-12

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 court (CPLR 3126; see, Kubacka v Town of N. Hempstead, 240 AD2d 374; Soto v City of Long Beach, 197 AD2d 615).

Courts have discretion to choose the nature and degree of a CPLR 3126 penalty, including whether to grant dismissal conditionally.

Pulizzi v. Oghia · filed 1999-06-21

Here, the Supreme Court did not improvidently exercise its discretion in only conditionally granting the appellant’s motion pursuant to CPLR 3126.

Section 3126 allows a court to decline to impose a penalty for a short delay in providing disclosure.

Reape v. City of New York · filed 1999-11-01

In addition, the Supreme Court did not improvidently exercise its discretion in failing to impose a penalty upon the defendants for the short delay in providing disclosure (see, CPLR 3126).

CPLR 3126 permits dismissal for a willful failure to disclose, but dismissal is inappropriate when the opposing party was not prejudiced.

Smilovich v. Rottenstein · filed 1999-11-15

The Supreme Court properly denied the defendants’ motion for summary judgment or to dismiss the complaint pursuant to CPLR 3126 for willfully failing to disclose information which should have been disclosed. Since the defendants were not prejudiced by the plaintiffs’ failure to disclose, dismissal of the complaint — one of the most severe remedies that may be imposed upon a plaintiff (see, Lipin v Bender, 84 NY2d 562, 572) — would have been inappropriate (cf., Brown v Michelin Tire Corp., 204 AD2d 255; see also, Wolfson v Nassau County Med. Ctr., 141 AD2d 815).

Dismissal under CPLR 3126(3) may be denied when the movant fails to show that a disclosure delay was willful, contumacious, deliberate, or in bad faith.

McCracken v. Nitto Kohki USA, Inc. · filed 2000-04-10(3)

The Supreme Court providently exercised its discretion in denying the appellants’ motion pursuant to CPLR 3126 (3) to dismiss the complaint insofar as asserted against them.

Section 3126 requires a party seeking discovery penalties to establish that the opposing party’s failure to comply was willful.

Lozada v. Build On Top, HDFC · filed 1999-11-16

It is incumbent upon plaintiff, as the moving party, to establish that appellant’s failure to comply with discovery demands was willful (Herrera v City of New York, 238 AD2d 475).

Section 3126 does not support dismissing a complaint for failure to comply with a discovery order when the plaintiffs had complied by the time the dismissal motion was made.

Hamilton v. Francis · filed 2000-01-18

The Supreme Court improvidently exercised its discretion in granting the defendants’ motion, as the plaintiffs had complied with the discovery order by the time the motion was made (see, CPLR 3126).

Section 3126 permits a lesser sanction for false discovery statements even when dismissal is unwarranted because the opposing party suffered no apparent prejudice.

Quiceno v. 101 Park Avenue Associates · filed 2000-05-09

Given that any false statements may be used to impeach plaintiffs credibility and absent any apparent prejudice to defendants, the IAS Court’s refusal to sanction plaintiff pursuant to CPLR 3126, by dismissing the complaint, was not an improvident exercise of its discretion. ... Thus, inasmuch as we feel that some penalty is warranted, we remand the matter.

Section 3126 permits just penalties for a willful failure to comply with disclosure.

Osterhoudt v. Wal-Mart Stores, Inc. · filed 2000-06-22

CPLR 3126 provides for penalties “as are just” for a willful failure to comply with disclosure.

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

Carbone v. McDermott · filed 2000-10-02

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the Supreme Court (see, Soto v City of Long Beach, 197 AD2d 615). Under the circumstances, the court providently exercised its discretion.

Section 3126 permits a court to dismiss a pleading when repeated, unexcused failures to obey disclosure orders support an inference of willful and contumacious conduct.

Brandes v. Pirnie-Baker · filed 2001-11-26

Dismissal of a party’s pleading pursuant to CPLR 3126 is within the discretion of the Supreme Court where, as here, the ... party’s repeated failure to comply with orders of the court directing disclosure, without excuse, supports an inference that the failure to provide disclosure was willful and contumacious (see, Ranfort v Peak Tours, 250 AD2d 747; Frias v Fortini, 240 AD2d 467; Kubacka v Town of N. Hempstead, 240 AD2d 374).