N.Y. C.P.L.R. § 3126

CPLR 3126 permits precluding a party from calling its own witnesses for failing to comply with discovery orders, even if the party is out of business, but precluding it from offering other evidence is excessive.

Healy v. ARP Cable, Inc. · filed 2002-11-07

The fact that University Inc. is out of business does not insulate it from CPLR 3126 sanctions (see Shorter v Luxury Auto Rentals, 234 AD2d 158), and a sanction is clearly in order because University Inc. neither complied with the discovery orders nor showed that it had timely undertaken to locate a witness initially. However, the sanction was excessive to the extent it prevented University Inc. from offering any kind of evidence besides testimony.

Section 3126 permits a court to preclude a party from using a statement as evidence-in-chief when the party withholds it despite discovery demands and a court order.

Mingo v. Manhattan & Bronx Surface Transit Operating Authority · filed 2003-02-20

The trial court properly exercised its discretion in precluding defendant from using a statement by plaintiff contained in defendant’s in-house accident report as evidence-in-chief since defendant withheld the accident report until the time of jury selection despite plaintiffs long-standing specific demands for such party statements, and in violation of a court order pursuant to which discovery was to have been completed many months before (see CPLR 3126; and see Kassis v Teachers Ins. & Annuity Assn., 258 AD2d 271; Cano v BLF Realty Holding Corp., 243 AD2d 390).

Section 3126 permits a court to preclude testimony and evidence when a party wilfully violates discovery orders.

Gleicher v. Gleicher · filed 2003-03-17

The Supreme Court providently exercised its discretion in precluding testimony and evidentiary submissions regarding the father’s business expenditures since he wilfully violated discovery orders (see CPLR 3126; Caccioppoli v Long Is. Jewish Med. Ctr., 271 AD2d 565 [2000]; Matter of Cicardi v Cicardi, 267 AD2d 784 [1999]; Kingsley v Kantor, 265 AD2d 529 [1999]; see also La Porte v La Porte, 263 AD2d 585 [1999]; Faber v Faber, 206 AD2d 644 [1994]).

Section 3126 permits just sanctions for willful failure to disclose, but preclusion was unwarranted where the omission was in good faith and the opposing party knew the evidence existed.

Biggs v. O'Neill · filed 2003-10-30

CPLR 3126 provides for such penalties “as are just” for a willful failure to comply with disclosure. ... Here, plaintiffs’ failure to disclose the cost estimates was neither willful, intentional nor in bad faith.

A court may deny a CPLR 3126 motion for preclusion when the unanswered interrogatories seek improper, overly broad, and burdensome discovery.

Time Warner Entertainment Co., L.P. v. State Board of Real Property Services · filed 2003-05-15

The appropriate remedy in such circumstances is to deny the moving parties’ motion rather than to attempt to prune the palpably improper, over-broad, and egregiously burdensome disclosure requests ... The court concludes that the motion pursuant to CPLR 3126 for preclusion must be denied.

CPLR 3126 permits preclusion of damages claims and dismissal of a complaint when plaintiffs repeatedly violate discovery orders, including an order to complete medical examinations by a set date.

Russell v. B&B Industries, Inc. · filed 2003-10-27

Contrary to the plaintiffs’ contention, the Supreme Court providently exercised its discretion in granting the defendants’ motion pursuant to CPLR 3126 to preclude their claims for damages and to dismiss the complaint since the plaintiffs repeatedly violated the Supreme Court’s discovery orders, including the order directing the injured plaintiff to appear for certain independent medical examinations (hereinafter IMEs) and violated the Supreme Court’s subsequent order directing that such claims would be precluded if he failed to complete all IMEs by a date certain (see Kihl v Pfeffer, 94 NY2d 118 [1999]; Gomez v Gateway Demolition Corp., 293 AD2d 649 [2002]; Abouzeid v Cadogan, 291 AD2d 423 [2002]).

Section 3126(2) permits a preclusion order against a party who fails to disclose, but the order does not bar an innocent party from offering that party’s testimony.

Williams v. New Style Limousine, Inc. · filed 2003-11-05(2)

The Court of Appeals succinctly sets forth the scope of a preclusion order, pursuant to CPLR 3126 (2), as follows: “The sanctions for failure to comply . . . include a preclusion order preventing the nondisclosing party from using the evidence in any manner during the course of the litigation” (Northway Eng’g v Felix Indus., 77 NY2d 332, 335 [1991] [emphasis added]). Plaintiff bore no responsibility for the failure of defendant Masih to testify on four different occasions, and it would therefore be wholly unfair to punish plaintiff by precluding her from offering said defendant’s testimony.

Section 3126(2) permits preclusion of evidence when a party willfully fails to comply with deposition orders.

Stever v. Stever · filed 2004-08-02(2)

Furthermore, the Supreme Court providently exercised its discretion in granting that branch of the plaintiffs cross motion which was to preclude the defendant from offering evidence at trial regarding financial issues (see CPLR 3126 [2]). The defendant’s willful and contumacious conduct could be inferred from his failure to comply with court orders directing him to proceed with depositions, and the inadequate excuses offered for his failures to comply (see Conch Assoc, v PMCC Mtge. Corp., 303 AD2d 538 [2003]; Kingsley v Kantor, 265 AD2d 529 [1999]; Espinal v City of New York, 264 AD2d 806 [1999]).

CPLR 3126 permits preclusion of evidence when a party repeatedly fails to comply with court-ordered discovery.

Merchants T & F, Inc. v. Fisher · filed 2004-10-12

The sanction of preclusion imposed by the motion court pursuant to CPLR 3126 was warranted in light of plaintiff’s repeated and persistent failure to comply with court-ordered discovery.

Section 3126 requires a party seeking preclusion for lost evidence to show severe prejudice to its ability to present its case.

Kirschen v. Marino · filed 2005-03-21

The defendants failed to sustain their burden of demonstrating that they would be severely prejudiced by reason of the missing evidence in presentation of their defense to the plaintiffs claim.

Section 3126 permits a court to preclude evidence supporting a claim when a party repeatedly fails to produce, and ultimately destroys, documents essential to defending against that claim.

Certified Electrical Contracting Corp. v. City of New York · filed 2005-05-16

The court erred in failing to impose an appropriate sanction upon the plaintiff for its repeated failure to produce, and its ultimate spoliation of, certain financial documents which were to be used in support of its claim for lost profits. ... Accordingly, the plaintiff is precluded from offering any evidence at trial regarding lost profits.

Courts have discretion under CPLR 3126 to deny a motion to preclude evidence on damages.

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

— In an action to recover damages for personal injuries, etc., the defendants appeal from (1) an order of the Supreme Court, Richmond County (Minardo, J.), dated July 17, 2003, which denied their motion pursuant to CPLR 3126 to preclude the plaintiff from offering evidence on the issue of damages and, upon preclusion, for summary judgment dismissing the complaint, and (2) an order of the same court dated September 4, 2003, which denied their motion, denominated as one for leave to reargue and renew, but which, in actuality, was one for leave to reargue. ... The Supreme Court providently exercised its discretion in denying the defendants’ motion (see Ferrarese v USAA Cas. Ins. Co., 271 AD2d 401 [2000]; Nudelman v New York City Tr. Auth., 172 AD2d 503 [1991]).

Section 3126 permits a court to preclude evidence supporting a claim when a party repeatedly fails to produce and ultimately destroys documents essential to the opposing party’s defense.

Certified Electrical Contracting Corp. v. City of New York (Department of Transportation) · filed 2005-11-28

The court erred in failing to impose an appropriate sanction upon the plaintiff for its repeated failure to produce, and its ultimate spoliation of, certain financial documents which were to be used in support of its claim for lost profits. ... Accordingly, the plaintiff is precluded from offering any evidence at trial regarding lost profits.

Section 3126 permits preclusion when a party disobeys a disclosure order or willfully fails to disclose required information, but the party seeking preclusion must show grounds for that drastic remedy.

Pepsico, Inc. v. Winterthur International America Insurance · filed 2005-12-27

CPLR 3126 provides that a court may issue a preclusion order if “a party . . . refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed.” The appellant failed to demonstrate that it was entitled to so drastic a remedy as preclusion.

Section 3126(3) permits preclusion for spoliation when a party intentionally or negligently fails to preserve crucial evidence after notice that it might be needed for litigation.

Lovell v. United Skates of America, Inc. · filed 2006-04-25(3)

The Supreme Court improvidently exercised its discretion in imposing a sanction of preclusion based on the alleged spoliation of evidence because the plaintiff did not establish that the defendant intentionally or negligently failed to preserve crucial evidence after being placed on notice that the evidence might be needed for future litigation (see Goll v American Broadcasting Cos., Inc., 10 AD3d 672, 673 [2004]; Andretta v Lenahan, 303 AD2d 527, 528 [2003]).

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

Moog v. City of New York · filed 2006-06-13

“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”

Section 3126 permits courts to preclude trial evidence concerning inadequately answered items in a bill of particulars.

Tracy v. Fagin · filed 2006-07-11

The Supreme Court providently exercised its discretion in precluding the plaintiffs from offering evidence at trial with respect to items 6 and 10 of the bills of particulars and the amended bills of particulars.

Under CPLR 3126, a court may deny a request to preclude evidence as a spoliation sanction when the loss of evidence is not shown to have resulted from intentional or negligent destruction and the movant has not shown prejudice.

Iamiceli v. General Motors Corp. · filed 2008-05-06

Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs, and that branch of the motion of the defendant General Motors Corporation which was pursuant to CPLR 3126 to preclude the plaintiff, on the ground of spoliation of evidence, from introducing evidence in support of his strict products liability claim is denied. ... However, under the circumstances, the Supreme Court improvidently exercised its discretion in sanctioning the plaintiff for the spoliation of evidence by precluding him from introducing evidence in support of his strict products liability claim.

Section 3126 permits preclusion of trial evidence, but an unsupported request for preclusion is denied.

A.B. Medical Services PLLC v. Travelers Indemnity Co. · filed 2008-05-19

The portion of the motion seeking preclusion is without support and is denied.

Section 3126 permits a court to limit preclusion of undisclosed evidence to the matters covered by a discovery demand, particularly when the failure to disclose was not willful.

Rossal-Daub v. Walter · filed 2009-01-15

In our view, because at least a portion of the affidavit addresses issues which are not covered by defendants’ discovery notice, and because there is no indication in this record that the failure to disclose the name of Frederick Daub as a witness was willful (see CPLR 3126), total preclusion of the affidavit was not warranted (see Ashline v Kestner Engrs., 219 AD2d 788, 790 [1995]; cf. Bombard v County of Albany, 94 AD2d 910 [1983], appeal dismissed 60 NY2d 643 [1983]; see generally Siegel, NY Prac § 349, at 568 [4th ed]).

Section 3126(2) permits a court to preclude designated evidence when a party willfully fails to comply with discovery; the choice of sanction is within the court’s discretion.

Raville v. Elnomany · filed 2010-08-03(2)

CPLR 3126 states that a court may sanction a party for willfully failing to comply with discovery, including precluding the party from “producing in evidence designated things or items of testimony” (CPLR 3126 [2]). ... Here, there was no evidence in the record showing that the Supreme Court improvidently exercised its discretion in issuing the order dated May 30, 2007, granting the wife’s application to preclude the defendant from offering financial evidence at the hearing on equitable distribution based on his willful failure to comply with discovery.

Section 3126(2) permits a court to preclude a witness from testifying as a sanction for failure to comply with discovery.

Corso v. State · filed 2010-05-25(2)

Under the circumstances, the Court of Claims providently exercised its discretion in sanctioning the defendant pursuant to CPLR 3126 (2) by precluding a particular defense witness from testifying at the trial (cf. Shmueli v Corcoran Group, 29 AD3d 309, 309-310 [2006]; Vigilant Ins. Co. v Barnes, 199 AD2d 257 [1993]).

Section 3126 permits a trial court to preclude evidence as a remedy for a party’s failure to comply with disclosure demands.

Jeker v. Weiss · filed 2010-10-21

In this regard, we need note only that CPLR 3126 vests a trial court with the authority to fashion an appropriate remedy where, as here, a party “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed.” Given the mother’s demonstrated history of noncompliance, we cannot say that Family Court abused its discretion in precluding her from offering evidence on this point (see Cavanaugh v Russell Sage Coll., 4 AD3d 660, 660-661 [2004]).

CPLR 3126 permits a court to preclude a party from offering documents at trial for violating a discovery order and obstructing a deposition.

Callaghan v. Curtis · filed 2011-03-08

Here, the plaintiff clearly violated a prior order of the Supreme Court by failing to bring certain documents to her deposition. Her attorney also made extensive “speaking objections” during the deposition, and the plaintiff herself repeatedly refused to answer clear questions. We conclude that the Supreme Court providently exercised its discretion, upon the defendants’ motion pursuant to CPLR 3126 to strike her reply to their counterclaims, by, inter alia, precluding the plaintiff from offering any documents at trial (see e.g. O’Neill v Ho, 28 AD3d 626, 627 [2006]).

Section 3126 permits a court to preclude trial testimony for willful failure to comply with discovery orders when striking the complaint would be too harsh.

Wright v. Mount Vernon Hospital · filed 2011-10-18(2), (3)

Although the plaintiffs conduct was willful and contumacious, contrary to the contention of the defendant Mount Vernon Hospital, under the circumstances of this case, the sanction of striking the complaint would have been too harsh. Accordingly, the Supreme Court providently exercised its discretion in granting its motion pursuant to CPLR 3126 to the extent of precluding the plaintiff from testifying at trial.

Section 3126 permits preclusion of evidence for discovery noncompliance when the conduct is willful, contumacious, or in bad faith.

Castor Petroleum, Ltd. v. Petroterminal de Panama, S.A. · filed 2011-12-01

The court’s preclusion order was an improvident exercise of discretion (see CPLR 3126; Gradaille v City of New York, 52 AD3d 279 [2008]). There was no basis for finding that any noncompliance with the preliminary conference order was willful, contumacious, or in bad faith, as would justify precluding plaintiff from presenting evidence in support of its damages claim (see Sidelev v Tsal-Tsalko, 52 AD3d 398 [2008]).

Section 3126 requires a clear showing of willful and contumacious noncompliance before a court precludes evidence for violating a discovery order.

Zakhidov v. Boulevard Tenants Corp. · filed 2012-06-06

Before a court invokes the drastic remedy of striking a pleading, or even of precluding evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious (see Moog v City of New York, 30 AD3d 490, 490-491 [2006]; Assael v Metropolitan Tr. Auth., 4 AD3d 443 [2004]; Kelleher v Mt. Kisco Med. Group, 264 AD2d 760, 761 [1999]). ... Here, nothing in the record supports a conclusion that the plaintiffs failure to provide updated HIPAA-compliant authorizations in violation of the court orders was willful and contumacious.

CPLR 3126 does not permit preclusion of evidence for an alleged failure to provide requested authorizations when the requesting party has not established willful and contumacious noncompliance.

Piper-Rader v. Muslim · filed 2012-10-03

Moreover, although the Supreme Court, in effect, granted the defendants’ application, in effect, pursuant to CPLR 3126 to preclude the plaintiffs from offering certain medical evidence at trial because the plaintiffs allegedly failed to comply with the defendants’ request to provide updated HIPAA-compliant authorizations, the defendants did not establish that the plaintiffs’ alleged failure to comply with the request was willful and contumacious ... Therefore, the Supreme Court should have denied that application.

Preclusion under CPLR 3126 is a drastic remedy that may be denied when the movant fails to show willful and contumacious noncompliance with a disclosure order.

Korchak v. Santana · filed 2013-01-30

The appellant did not demonstrate that the respondent’s conduct in failing to produce a certain original X-ray film, which was unavailable to him, was willful and contumacious such that the drastic remedy of preclusion would be justified (see Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 739 [2012]; Lampel v Sergel, 287 AD2d at 549).

Section 3126 does not support precluding a party from offering evidence at trial without a clear showing of willful and contumacious conduct in response to a notice to produce.

State Farm Fire and Casualty Co. v. R. Best Plumbing, Inc. · filed 2013-01-30

Furthermore, there was no clear showing that the appellants engaged in willful and contumacious conduct in response to the plaintiffs notice to produce ... Accordingly, the plaintiffs motion pursuant to CPLR 3126 to preclude the appellants from offering evidence at trial should have been denied.

CPLR 3126 gives courts discretion to remedy violations of discovery orders; a brief delay without a showing of bad faith, willful noncompliance, or prejudice need not result in preclusion.

Mary Imogene Bassett Hospital v. Cannon Design, Inc. · filed 2012-07-19

Where a party fails to comply with a discovery order, CPLR 3126 authorizes the court to fashion an appropriate remedy, the nature and degree of which are matters entrusted to the court’s sound discretion, and its determination will not be disturbed on appeal absent a clear abuse of that court’s discretion ... Here, defendant has failed to establish that plaintiffs late submission, which occurred less than seven days after the court-ordered deadline, was a result of any bad faith or willful noncompliance.

Section 3126 permits a court to preclude witnesses and evidence when a party willfully violates discovery obligations, even if the party later corrects its responses.

Arpino v. F.J.F. & Sons Electric Co. · filed 2012-12-05(2)

Under these circumstances, it was an improvident exercise of the Supreme Court’s discretion to have denied, in its entirety, the plaintiffs motion to impose sanctions upon the defendants pursuant to CPLR 3126. ... This conduct merits the strong sanction of preclusion, with the defendants permitted to employ, at trial, only that which was disclosed in a reasonable and timely manner.

CPLR 3126 permits discovery sanctions, including preclusion of evidence, but preclusion may be improper when the opposing party moved to compel production without requesting sanctions.

Great Northern Insurance v. Zen Restoration Inc. · filed 2013-04-04

Under these circumstances, it was an improvident exercise of discretion for the motion court to preclude Zen from offering evidence at trial, especially since Gallagher sought to compel, and did not move for sanctions pursuant to CPLR 3126 (cf. Emmitt v City of New York, 66 AD3d 504, 505 [1st Dept 2009] [not an improvident exercise of discretion for motion court to grant plaintiffs motion to strike defendant’s answer to extent of precluding it from offering certain evidence]).

Section 3126(3) permits a court to preclude evidence when a party repeatedly fails, without reasonable excuse, to provide meaningful responses required by a discovery order.

H.R. Prince, Inc. v. Elite Environmental System, Inc. · filed 2013-06-19(3)

Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiffs cross motion which was pursuant to CPLR 3126 to preclude the defendants from presenting evidence at trial with respect to those items sought in the plaintiff s supplemental notice of demand for production of documents dated March 2, 2011, which were delineated in the plaintiffs “notice of preclusion” dated December 12, 2011.

Section 3126(2) permits a court to preclude evidence on a particular issue when a party willfully fails to comply with discovery demands and court orders.

Hameroff & Sons, LLC v. Plank, LLC · filed 2013-07-11(2)

Accordingly, considering defendant’s continued and willful failure to comply with demands and court orders for disclosure, Supreme Court did not abuse its discretion by precluding defendant from offering evidence on a particular issue (see CPLR 3126 [2]; Matter of Scaccia, 66 AD3d 1247, 1250 [2009]; O’Brien v Clark Equip. Co., 25 AD3d 958, 960 [2006]; see also Sugar Foods De Mexico v Scientific Scents, LLC, 88 AD3d 1194, 1196 [2011]).

Section 3126 permits a court to preclude evidence when a party refuses to obey a disclosure order or wilfully fails to disclose required information.

Aha Sales, Inc. v. Creative Bath Products, Inc. · filed 2013-10-30

Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed.”

CPLR 3126 permits preclusion of evidence for spoliation when the loss severely prejudices the opposing party’s ability to defend.

Ever Win, Inc. v. 1-10 Industry Associates · filed 2013-11-27

The Supreme Court providently exercised its discretion in denying that branch of the defendant’s motion which was pursuant to CPLR 3126 to preclude the plaintiff from offering at trial any evidence of damages based upon spoliation of evidence. The defendant failed to establish that it was severely prejudiced by the disposal and sale of the damaged goods, fatally compromising its ability to mount a defense and necessitating such relief as a matter of fundamental fairness (see Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717 [2009]; Kirschen v Marino, 16 AD3d 555 [2005]; Chiu Ping Chung v Caravan Coach Co., 285 AD2d 621 [2001]).

Preclusion under CPLR 3126 requires a clear showing that the failure to comply with a discovery order was willful and contumacious.

Oller v. Liberty Lines Transit, Inc. · filed 2013-11-27

In any event, there was no clear showing that the plaintiffs’ failure to comply with a compliance conference order entered May 7, 2012, was willful and contumacious (see Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 739 [2012]; Moray v City of Yonkers, 76 AD3d 618, 619 [2010]; Assael v Metropolitan Tr. Auth., 4 AD3d 443, 444 [2004]).

Section 3126 permits preclusion of testimony for willful failure to comply with discovery, but preclusion is improper when a diligent search shows the requested documents do not exist.

Flores v. Velez · filed 2013-11-06

Accordingly, the Supreme Court, upon reargument, should have vacated its original determination granting that branch of the plaintiffs motion pursuant to CPLR 3126 which was, in effect, to preclude the church defendants from offering certain testimony at trial.

CPLR 3126 permits preclusion for discovery noncompliance only when the party seeking the sanction establishes willfulness or bad faith; a finding that evidence is speculative does not justify that sanction.

D.A. Bennett LLC v. Cartz · filed 2014-01-16(2)

As that burden was not met, preclusion should not have been granted and defendant’s counterclaims should not have been dismissed. Moreover, City Court made no finding of willfulness, but based the preclusion order instead upon the conclusion that the records that defendant sought to admit were “speculative,” and thus unduly prejudicial — a determination that does not provide a basis for relief pursuant to CPLR 3126.

CPLR 3126 permits a court to preclude evidence when a party willfully fails to provide requested discovery.

Mikhailov v. Katan · filed 2014-04-09

Pursuant to CPLR 3126, a court may impose discovery sanctions, including the preclusion of evidence, where a party “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed.” ... Accordingly, the Supreme Court did not improvidently exercise its discretion in granting that branch of the plaintiff s motion which was to preclude Katan from introducing any documents pertaining to his personal finances that had been requested but not produced, to the extent of precluding him from introducing any such documents that had not been produced as of April 9, 2012, and testimony relating to such documents (see Aha Sales, Inc. v Creative Bath Prods., Inc., 110 AD3d 1019, 1019-1020 [2013]).

Section 3126 permits a court to preclude evidence when a party fails to search for and produce materials requested in discovery.

Romano v. Persky · filed 2014-05-14(2)

However, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs’ motion which was pursuant to CPLR 3126 for the imposition of the sanction of preclusion against Persky for his failure to comply with the plaintiffs’ discovery demand for photographic images taken during the subject procedure.

Section 3126 permits a court to preclude evidence for willful discovery noncompliance; preclusion may be denied when the party has complied with discovery.

Margolin v. Margolin · filed 2014-05-28

Here, the Supreme Court providently exercised its discretion in denying the plaintiffs motion to preclude the defendant from presenting evidence regarding her finances at trial as the defendant showed that she had complied with discovery.

Section 3126 requires a clear showing of willful and contumacious failure to comply with court-ordered discovery before evidence may be precluded.

Dimoulas v. Roca · filed 2014-09-17

Here, the Supreme Court improvidently exercised its discretion in granting that branch of the hospital defendants’ motion which was to conditionally preclude the plaintiffs from introducing evidence of the injured plaintiff’s neurological injuries, since there was no clear showing that the injured plaintiff had willfully and contumaciously failed to appear for a neuropsychological examination.

CPLR 3126 permits preclusion of evidence for discovery noncompliance only upon a clear showing of willful and contumacious conduct.

Brinson v. Pod · filed 2015-06-24

Before a court invokes the drastic remedy of precluding evidence, there must be a clear showing that the failure to comply with discovery demands or court-ordered discovery was willful and contumacious (see Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 210 [2012]; Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 739 [2012]).

CPLR 3126 permits precluding a party’s liability evidence, including evidence adduced through another party, when repeated failure to produce a deposition witness is willful and contumacious.

Piatek v. Oak Drive Enterprises, Inc. · filed 2015-06-10

In light of Vojtek’s failure, over an extended period of time, to comply with multiple so-ordered stipulations directing it to produce a witness for a deposition, the Supreme Court properly concluded that Vojtek engaged in willful and contumacious conduct and, in effect, upon reargument, providently exercised its discretion in precluding Vojtek “from producing any testimony or evidence in the liability portion of the trial even if said testimony or evidence is to be adduced from a party other than Vojtek” (see Yong Soon Oh v Hua Jin, 124 AD3d 639, 641 [2015]; Stone v Zinoukhova, 119 AD3d 928, 930 [2014]).

Section 3126(2) does not warrant precluding an expert for an omitted disclosure without proof that the omission was willful, deliberate or contumacious.

Boyer v. Kamthan · filed 2015-07-09(2)

Keeping in mind the foregoing circumstances and the somewhat-murky theories of liability, plaintiff did not prove that RAPC acted willfully, deliberately or contumaciously in omitting from its expert disclosure its intent to call an expert who would testify about the Beatty theory so as to warrant the drastic remedy of preclusion of RAPC’s medical expert (see CPLR 3126 [2]; Abselet v Satra Realty, LLC, 85 AD3d 1406, 1407-1408 [2011]; Armstrong v Armstrong, 72 AD3d 1409, 1410-1411 [2010]; compare BDS Copy Inks, Inc. v International Paper, 123 AD3d 1255, 1256-1257 [2014]).

Section 3126 does not justify precluding testimony when a party cannot enter the United States for discovery and the proposed alternative requires unreasonable travel expenses.

Wang v. A & W Travel, Inc. · filed 2015-07-29

In light of the foregoing, we find that the Supreme Court improvidently exercised its discretion in precluding the plaintiff from testifying at trial unless, within a certain period of time, he appeared for a deposition and an independent medical examination in New York or stipulated to pay for business class airfare and accommodations for the defendants’ attorneys and independent medical examination doctor to conduct the deposition and the independent medical examination in China.

Section 3126 permits a court to preclude documents disclosed long after a court-ordered deadline when the delay supports an inference of willfulness and their use would prejudice the other side.

Calabrese Bakeries, Inc. v. Rockland Bakery, Inc. · filed 2016-05-12

Accordingly, as these circumstances give rise to the inference that plaintiffs' late disclosure was willful and the Rockland defendants would be prejudiced by plaintiffs' use of the belatedly-disclosed documents, Supreme Court did not abuse its discretion in precluding plaintiffs from introducing, referencing or relying on those documents at trial (see Greaves v Burlingame, 12 AD3d 730, 731-732 [2004], lv dismissed and denied 5 NY3d 741 [2005], lv dismissed 5 NY3d 742 [2005]; Osterhoudt v Wal-Mart Stores, 273 AD2d 673, 674-675 [2000]).

Section 3126(2) permits evidence preclusion for discovery violations, but demands later struck cannot support sanctions, and preclusion generally requires willful and contumacious conduct.

Cioffi v. S.M. Foods, Inc. · filed 2016-08-10(2)

Here, the defendants cannot be sanctioned for failing to respond to discovery demands which were ultimately stricken by the Supreme Court. As to the remaining demands, the plaintiffs have failed to demonstrate that any of the defendants acted willfully and contumaciously in violation of the court’s orders.

Section 3126 permits a court to preclude evidence when a party repeatedly fails to provide requested discovery, and willfulness may be inferred from repeated failures coupled with inadequate excuses.

Oversea Chinese Mission v. Well-Come Holdings, Inc. · filed 2016-12-29

Despite repeated discovery requests from 2004 through 2009, it was not until 2012 that, for the first time, OCM produced documents of repairs actually made in 2007; therefore the court providently precluded OCM from offering such evidence at trial (see Siegman v Rosen, 270 AD2d 14, 15 [1st Dept 2000], citing CPLR 3126). Further, “willfulness can be inferred when a party repeatedly fails to respond to discovery demands and/or to comply with discovery orders, coupled with inadequate excuses for those defaults,” such as here (id.).

CPLR 3126 permits a court to preclude a party from offering financial evidence at trial for willful violations of discovery orders and failure to comply with discovery requests.

Douek v. Douek · filed 2017-03-15

Contrary to the defendant’s contention, the Supreme Court did not improvidently exercise its discretion in granting that branch of the plaintiff’s motion which was pursuant to CPLR 3126 to preclude the defendant from offering financial evidence at trial due to her willful violation of discovery orders and her failure to comply with the plaintiff’s discovery requests (see CPLR 3126; Raville v Elnomany, 76 AD3d 520 [2010]; Casey v Casey, 39 AD3d 579 [2007]; Green v Green, 32 AD3d 898 [2006]; Serdaroglu v Serdaroglu, 209 AD2d 606 [1994]).

Section 3126(2) permits a court to preclude evidence when a party refuses to obey a disclosure order or willfully fails to disclose required information, upon a clear showing of willful and contumacious noncompliance.

Patino v. Carlyle Three, LLC · filed 2017-03-29(2)

A court may, inter alia, issue an order “prohibiting the disobedient party . . . from producing in evidence designated things or items of testimony” as a sanction against a party who “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” (CPLR 3126 [2]). ... The record demonstrates that the plaintiffs’ failure to provide the properly executed medical authorizations was willful and contumacious, and thus, the Supreme Court providently exercised its discretion.

Section 3126 permits preclusion of evidence when a party fails to comply with a discovery order by the required deadline.

Ave T MPC Corp. v. Prudential Prop. & Cas. Ins. Co. · filed 2016-10-21

The order entered October 9, 2009 unambigously provided that plaintiff would be precluded from using the claim forms at issue if plaintiff failed to comply with the stipulation. The record fails to establish that, within the 60-day time period set forth in the stipulation, plaintiff either produced legible copies of the claim forms or provided an affidavit setting forth [*2] why it could not provide legible copies of the claim forms. We note that the affidavit attached to plaintiff's opposition papers was served upon defendant over six months beyond the time permitted by the order. Consequently, we find no basis to reverse the judgment.

Section 3126 permits dismissal of a complaint when a party willfully or contumaciously fails to comply with court-ordered discovery.

Renelique v. Lancer Ins. Co. · filed 2016-10-31

Although dismissing a complaint pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party's conduct is shown to be willful, contumacious or in bad faith ( see Rock City Sound, Inc. v Bashian & Farber, LLP , 83 AD3d 685 [2011]). In the case at bar, that plaintiff's conduct was willful and contumacious can be inferred from its refusal to adequately comply with discovery requests, even after being directed to do so by court order, as well as from the absence of a reasonable excuse for its failure to comply ( see Tos v Jackson Hgts. Care Ctr., LLC , 91 AD3d 943 [2012]; Rowell v Joyce , 10 AD3d 601 [2004]).

Section 3126(2) permits preclusion for failure to cooperate with disclosure when that failure is willful, deliberate, and contumacious.

Seale v. Seale · filed 2017-04-06(2)

However, “the remedy of preclusion is reserved for those instances where the offending party’s lack of cooperation with disclosure was willful, deliberate, and contumacious” (Kumar v Kumar, 63 AD3d at 1248 [internal quotation marks and citations omitted]; see CPLR 3126 [2]; Armstrong v Armstrong, 72 AD3d 1409, 1410 [2010]).

Section 3126 permits preclusion for failure to comply with discovery orders, but a plaintiff who genuinely attempted to schedule a deposition under an ambiguous order may testify if the defendants have an opportunity to depose him.

Mahgoub v. 880 Realty, LLC · filed 2017-05-31

Accordingly, Ahmed Mahgoub should be permitted to testify at trial, provided that the defendants have an opportunity to depose him.

Section 3126 requires a clear showing of willful and contumacious noncompliance before a court precludes evidence as a discovery sanction.

Household Fin. Realty Corp. of N.Y. v. Cioppa · filed 2017-08-30

Here, there was insufficient evidence to demonstrate that the plaintiff’s failure to comply with prior discovery orders of the court was willful and contumacious, and thus, the Supreme Court should not have prohibited it from producing evidence either at trial or in support of any dispositive motion for which information was sought by the defendants but not disclosed.

Section 3126 permits preclusion of evidence for delayed disclosure only when the failure to comply is shown to be willful and contumacious.

Candela v. Kantor · filed 2017-10-11

Here, the plaintiff failed to demonstrate that the defendant’s delay in producing the transcript and postaccident photographs was willful and contumacious (see Pesce v Fernandez, 144 AD3d at 654; Kanic Realty Assoc., Inc. v Suffolk County Water Auth., 130 AD3d at 877; Campbell v New York City Tr. Auth., 109 AD3d 455, 456 [2013]). Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff’s motion to preclude the defendant from introducing into evidence at trial the transcript of the plaintiff’s interview and copies of the subject postaccident photographs.

Section 3126 permits a court to conditionally preclude nonparty witness testimony if the witnesses fail to appear for depositions.

Santana v. Johnson · filed 2017-10-05

The motion court providently exercised its discretion in granting defendants’ preclusion motion only in the event that the nonparty witnesses failed to appear for depositions concerning their observations at physical examinations of plaintiffs (see CPLR 3126).

Section 3126 permits a court to preclude expert evidence when a party willfully fails to comply with a court-ordered disclosure deadline.

Colucci v. Stuyvesant Plaza, Inc. · filed 2018-01-11(2)

We are mindful that "the remedy of preclusion is reserved for those instances where the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious" ( Seale v Seale , 149 AD3d at 1165 [internal quotation marks and citation omitted]). Under these circumstances, we discern no basis upon which to disturb Supreme Court's implicit conclusion that plaintiffs' failure to provide any expert disclosure for over one year was willful and warranted the sanction of preclusion of their experts ( see CPLR 3126; Calabrese Bakeries, Inc. v Rockland Bakery, Inc. , 139 AD3d at 1194; BDS Copy Inks, Inc. v International Paper , 123 AD3d 1255, 1256-1257 [2014]; compare Graham v New York State Off. of Mental Health , 154 AD3d 1214, 1217 [2017]; Seale v Seale , 149 AD3d at 1165; Kim v A. Johnson Plumbing & Heating, Inc. , 148 AD3d 1312, 1313 [2017]).

Section 3126(2) allows preclusion as a disclosure sanction, but precluding secondary or hearsay evidence was an abuse of discretion where no order required its production and the court found no willful failure to disclose it.

Hypercel Corp. v. Stampede Presentation Prods., Inc. · filed 2018-02-09(2)

We thus agree with the court that plaintiff should be precluded from presenting testimony from the former employee. We conclude, however, that the court abused its discretion in precluding plaintiff from relying on any secondary or hearsay evidence related to the former employee. There was no order compelling the production of such evidence that plaintiff was alleged to have violated, and the court did not find a willful failure to disclose such evidence.

Section 3126(2) permits a court to preclude evidence when a party willfully and contumaciously fails to comply with court-ordered discovery.

Maliah-Dupass v. Dupass · filed 2018-11-21(2)

Before a court invokes the drastic remedy of precluding evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious ( see HSBC Bank USA, N.A. v Oscar , 161 AD3d 1055, 1057; Household Fin. Realty Corp. of N.Y. v Cioppa , 153 AD3d at 910; Zakhidov v Boulevard Tenants Corp. , 96 AD3d 737, 739). ... Accordingly, that branch of the defendant's motion which was to preclude the plaintiff from producing physical evidence or testimony at trial relating to certain limited items previously requested but not disclosed should have been granted.

Section 3126 permits a court to preclude trial evidence concerning requested invoices a party failed to produce, even when the failure does not justify striking its pleading.

Cap Rents Supply, LLC v. Durante · filed 2018-12-12

Accordingly, that branch of the appellants' motion which was to preclude the respondents from introducing at trial evidence of the requested invoices of Croton that were not provided should have been granted.

Section 3126 permits preclusion of expert testimony for deficient disclosure when the failure to disclose was intentional or willful and prejudiced the opposing party.

Henderson Harbor Mariners' Mar., Inc. v. Upstate Natl. Bank · filed 2018-11-09

Contrary to defendant's further contention, the court did not abuse its discretion in denying defendant's motion pursuant to CPLR 3126 to preclude the testimony of plaintiffs' expert forensic economist on the ground that plaintiffs' expert disclosure was insufficient ( see generally Rivera v Montefiore Med. Ctr. , 28 NY3d 999, 1002 [2016]). Defendant failed to establish that there was an intentional or willful failure to disclose by plaintiffs and that it was prejudiced by plaintiffs' allegedly deficient response to its demand for expert disclosure ( see Sisemore v Leffler , 125 AD3d 1374, 1375 [4th Dept 2015]).

CPLR 3126 permits preclusion of damages evidence when a party’s repeated failures to comply with discovery demands and orders are willful and contumacious.

Gafarova v. Yale Realty, LLC · filed 2019-07-31

We agree with the Supreme Court's determination that the plaintiff's repeated failures to comply with the defendants' discovery demands and court-ordered discovery were willful and contumacious and that the penalty of preclusion was warranted ( see Arpino v F.J.F. & Sons Elec. Co., Inc ., 102 AD3d 201, 212-213; see also Williams v Suttle , 168 AD3d 792).

Section 3126(2) permits a court to preclude evidence when a party willfully fails to comply with a discovery order.

Benedict v. Benedict · filed 2019-02-08(2)

Based on the father's willful failure to disclose the business ledgers, we conclude that the court did not abuse its discretion in imposing a preclusion sanction ( see CPLR 3126 [2]; Matter of Duma v Edgar , 58 AD3d 1085, 1086 [3d Dept 2009]; see generally Perry v Town of Geneva , 64 AD3d 1225, 1226 [4th Dept 2009]).

Section 3126 does not warrant preclusion of photographs when the record shows no willful or deliberate failure to disclose them before the discovery deadline.

Rinker v. 55 Motor Ave. Co., LLC · filed 2019-06-13

Additionally, there is nothing in the record to support the conclusion that plaintiffs willfully or deliberately failed to disclose the subject photographs prior to Rinker's deposition, which took place well before the court-ordered discovery deadline ( see CPLR 3126; Graham v New York State Off. of Mental Health , 154 AD3d at 1217). ... Accordingly, as Supreme Court properly concluded that the drastic remedy of preclusion is not warranted, we find no basis upon which to disturb the denial of defendants' motion ( cf. Silverberg v Community Gen. Hosp. of Sullivan County , 290 AD2d 788, 788-789 [2002]).

Section 3126 does not require preclusion for late disclosure of a witness when the opposing parties depose the witness before the motions are decided and suffer no prejudice.

Reyes v. Bruckner Plaza Shopping Ctr. LLC · filed 2019-06-20

We reject defendants' request to preclude Perez's affidavit and testimony on the ground that plaintiff did not disclose Perez's identity until after the filing of note of issue ( see CPLR 3126), in light of the parties stipulation, pursuant to which defendants were ultimately able to depose Perez before disposition of the summary judgment motions, and the lack of prejudice to them ( see Lozada v Build On Top, HDFC , 266 AD2d 63 [1st Dept 1999]).

CPLR 3126 permits a court to preclude trial evidence when a party willfully and contumaciously fails to comply with court-ordered discovery.

Giraldo v. Highmark Ind., LLC · filed 2019-08-28

The motion court has broad discretion to determine the nature and degree of the sanction to be imposed pursuant to CPLR 3126 ( see Mears v Long , 149 AD3d 823). Before a court invokes the drastic remedy of precluding a party from offering evidence at trial, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious ( see Zakhidov v Boulevard Tenants Corp. , 96 AD3d 737, 738). ... Here, the willful and contumacious character of the appellant's conduct can be inferred from its repeated failures to produce a representative for a deposition. The Supreme Court providently exercised its discretion in granting that branch of the plaintiffs' motion which was to strike the appellant's answer to the extent of precluding it from offering evidence at trial ( see Rogers v Howard Realty Estates, Inc. , 145 AD3d 1051; Commisso v Orshan , 85 AD3d 845).

Section 3126 allows preclusion for failure to comply with a disclosure order only when the court finds the failure willful, deliberate and contumacious.

New York Univ. v. Turner Constr. Co. · filed 2020-04-03

To invoke the drastic remedy of preclusion pursuant to CPLR § 3126, the court must first determine that a party's failure to comply with a disclosure order was willful, deliberate and contumacious ( Holliday v Jones , 36 AD3d 557 , 557-58 [1st Dept 2007]).

Preclusion under CPLR 3126(2) requires a clear showing that the failure to appear for depositions was willful and contumacious.

Belle-Fleur v. Desriviere · filed 2019-12-24(2)

Moreover, there was no clear showing that Desriviere and Basile willfully and contumaciously failed to appear for examinations before trial ( see CPLR 3126; Cannon v 111 Fulton St. Condominium, Inc. , 162 AD3d 838, 839; Conciatori v Port Auth. of N.Y. & N.J. , 46 AD3d 501, 502-503).

CPLR 3126 permits a final order of preclusion when repeated failures to attend depositions despite court orders support an inference of willful and contumacious conduct.

Bellevue v. Gustav · filed 2020-08-12

The plaintiffs' failures, over a period of 13 months and despite three court orders, to appear for depositions, coupled with their failures to substantiate a reasonable excuse for their defaults, supports an inference that their conduct was willful and contumacious ( see Dankenbrink v Dankenbrink , 154 AD3d 809, 810; Sadoyan v Castro , 102 AD3d 666, 667; Orgel v Stewart Tit. Ins. Co. , 91 AD3d 922, 924). Accordingly, we agree with the Supreme Court's determination to deny that branch of the plaintiffs' motion which was to vacate the conditional order of preclusion and to grant the defendants' cross motion for a final order of preclusion.

Section 3126 permits sanctions for failure to comply with a disclosure order, but complete preclusion requires willful, deliberate, and contumacious noncompliance.

Matter of Tara DD. v. Seth CC. · filed 2020-02-20

"Family Court may, in its discretion, impose sanctions upon a party that fails to comply with a disclosure order" ( Matter of Jesse E. v Lucia F. , 145 AD3d 1373, 1374 [2016] [citations omitted], lv denied 29 NY3d 905 [2017]; see CPLR 3126). "However, the remedy of preclusion is reserved for those instances where the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious" ( Seale v Seale , 149 AD3d 1164, 1165 [2017] [internal quotation marks and citations omitted]; see BDS Copy Inks, Inc. v International Paper , 123 AD3d 1255, 1255-1256 [2014]; Kumar v Kumar , 63 AD3d 1246, 1248 [2009]). ... Here, although the father failed to comply with court-ordered deadlines for responsive pleadings and discovery, the record lacks any evidence of willfulness on the part of the father to warrant a drastic sanction of complete preclusion ( see Seale v Seale , 149 AD3d at 1165; Kumar v Kumar , 63 AD3d at 1249).

Section 3126 permits a court to preclude evidence when a party willfully and contumaciously fails to provide required discovery.

Llanos v. Casale Constr. Servs., Inc. · filed 2020-11-12(2)

Before a court invokes the drastic remedy of precluding evidence based on the failure to provide court-ordered discovery, there must be a clear showing that the failure was willful and contumacious ( see HSBC Bank USA, N.A. v Oscar , 161 AD3d 1055, 1057; Household Fin. Realty Corp. of N.Y. v Cioppa , 153 AD3d 908, 910). ... Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the County's motion which was pursuant to CPLR 3126 to preclude the plaintiff from offering at trial the testimony of, or any evidence obtained from, two nonparty witnesses.

CPLR 3126 permits preclusion of evidence only upon a clear showing that the failure to comply with court-ordered discovery was willful and contumacious.

Sweet Constructors, LLC v. Wallkill Med. Dev., LLC · filed 2020-11-25

Although the motion court has broad discretion to determine the nature and degree of the sanction to be imposed pursuant to CPLR 3126, "[b]efore a court invokes the drastic remedy of precluding a party from offering evidence at trial, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious" ( Giraldo v Highmark Ind., LLC , 175 AD3d 654, 654-655; see Gutman v Cabrera , 121 AD3d 1042, 1043).

CPLR 3126 permits preclusion of evidence for failure to comply with court-ordered discovery when the moving party clearly shows that the failure was willful and contumacious.

Lombardi v. Lombardi · filed 2021-01-27

The Supreme Court providently exercised its discretion in denying that branch of the defendant's motion which was pursuant to CPLR 3126 to preclude the plaintiff from offering certain evidence at trial. The defendant failed to make a clear showing that any failure to comply with court-ordered discovery was willful and contumacious ( see Giraldo v Highmark Ind., LLC , 175 AD3d 654, 655; Madonna Mgt. Servs., Inc. v R.S. Naghavi, M.D., PLLC , 172 AD3d 845, 847).

A CPLR 3126 order precluding evidence withheld in discovery does not bar evidence already produced or witness testimony.

Extraco Banks, N.A. v. Wilson · filed 2021-08-11

Moreover, with respect to the defendant's contention that the plaintiff would not be able to establish the Wilsons' alleged default, as the plaintiff correctly contends, the preclusion order did not completely restrict it from offering any evidence of the Wilsons' default at trial, but rather, only precluded it from offering such evidence which it had in its possession, custody, or control, but failed to produce to the defendant. The preclusion order neither restricted the plaintiff's ability to introduce evidence it had produced to the defendant nor its right to call witnesses at trial, including, but not limited to, the Wilsons.

CPLR 3126 preclusion of evidence generally requires a showing of willful and contumacious conduct.

Lewis v. City of New York · filed 2022-06-22

However, the Supreme Court providently exercised its discretion in denying that branch of the defendants' motion which was pursuant to CPLR 3126 to preclude the plaintiff from offering evidence on the issue of damages at trial or in opposition to any motion for summary judgment. "Precluding a party from presenting evidence is a drastic remedy which generally requires a showing that the party's conduct is willful and contumacious" ( Cioffi v S.M. Foods, Inc. , 142 AD3d 526, 528). Here, the defendants failed to make such a showing ( see Santigate v Linsalata , 304 AD2d 639, 641).

COVID-19 Executive Orders did not change the requirements for a motion to preclude under CPLR 3126.

TavArez v. Ronad Holding Corp. · filed 2022-02-01

The statutory requirements of a motion to preclude ( see CPLR 3126) were not changed in any way by the issuance of the Covid-19 Executive Orders.

Section 3126 permits a court to preclude evidence as a discovery sanction when a party obstructs discovery and repeatedly fails to comply with court directives.

Stanescu v. Stanescu · filed 2022-06-29

The Supreme Court providently exercised its discretion by, in effect, granting the defendant's motion pursuant to CPLR 3126 for discovery sanctions to the extent of precluding the plaintiff from introducing evidence of rental income, expenses, or losses for the property for the period of 1999 through 2011 ( see CPLR 3120[1]; 3126; Lieberman v Green , 190 AD3d 713).

Section 3126 does not warrant barring a party from testifying when it complied with a conditional disclosure order and no willful, contumacious discovery failure was shown; the court may instead preclude evidence that was requested but not produced.

Robert v. Azoulay Realty Corp. · filed 2022-10-12

Since the plaintiff failed to show that the defendant violated the conditional order of preclusion or otherwise willfully and contumaciously failed to comply with discovery, the drastic sanction of precluding the defendant from testifying at trial was unwarranted ( see Pierre v 100 Corp. , 97 AD3d 804, 805). The appropriate remedy in such circumstances is to preclude the defendant from later offering evidence regarding items that were requested but not produced ( see Cap Rents Supply, LLC v Durante , 167 AD3d 700, 702-703; Bivona v Trump Mar. Casino Hotel Resort , 11 AD3d at 574-575; Corriel v Volkswagen of Am. , 127 AD2d 729, 731).

Section 3126(2) gives courts discretion to preclude evidence for failure to meet discovery deadlines, but preclusion is unwarranted when delayed disclosure causes no prejudice and discovery remains open.

Pizzo v. Lustig · filed 2023-05-10(2)

All things considered, the court's exercise of discretion against preclusion under CPLR 3126(2) was not improvident ( see Jenkins v Proto Prop. Servs., LLC , 54 AD3d at 726-727).

Section 3126 permits preclusion of evidence for a discovery failure only upon a clear showing that the failure was willful and contumacious.

Zavala v. Rennew Holding Corp. · filed 2023-08-16

However, before a court invokes the remedy of precluding evidence, there must be a clear showing that the failure to comply with discovery was willful and contumacious ( see Pizzo v Lustig , 216 AD3d at 44-45; Household Fin. Realty Corp. of N.Y. v Cioppa , 153 AD3d 908, 910; Zakhidov v Boulevard Tenants Corp. , 96 AD3d 737, 739). Here, the record does not demonstrate that the plaintiff's failure to previously disclose the audio recordings was willful and contumacious but, rather, that the delay was caused by the plaintiff's injuries, which impacted his memory, together with the fact that LG was added as a party about one year after the recordings were made. Accordingly, the Supreme Court providently exercised its discretion in denying LG's motion to preclude ( see Gelin v New York City Tr. Auth. , 189 AD3d 789, 793; Household Fin. Realty Corp. of N.Y. v Cioppa , 153 AD3d 908, 910).

Section 3126(2) permits a court to preclude a party from using documents to prove damages if the party fails to produce them by a court-ordered deadline.

Sara Tirschwell for Mayor, Inc. v. Kramer · filed 2024-01-04(2)

Thus, defendant's motion is granted to the extent that plaintiffs are compelled to produce any additional proof of expenses as alleged in the complaint, including attorney invoices and retainers, within 30 days, or otherwise be precluded from using any documents it fails to produce to support its damages pursuant to CPLR § 3126(2).

Section 3126(2) permits preclusion of evidence as a disclosure sanction when a party willfully or contumaciously refuses to comply with a disclosure order.

Walters v. Trump Vil. Apts. Two Owner LLC · filed 2024-01-25(2)

Moreover, the defendants.' submission did no_t_ demonstrate that the plaintiff or the plaintifr s children or grandchildren willfully or contumaciously refused to comply with an order to disclose.

Section 3126 permits a court to preclude evidence that a party failed to produce after repeatedly disobeying discovery orders.

RL v. ML · filed 2024-02-20(2)

Preclusion is warranted in this case because the Defendant has repeatedly failed to comply with Court Ordered discovery and disclosure.

Section 3126 leaves the choice of discovery sanction to the court’s discretion and requires willful, deliberate, and contumacious noncooperation before evidence is precluded.

Lurie v. Lurie · filed 2024-04-24

The nature and degree of the penalty to be imposed under CPLR 3126 is a matter generally left to the court's discretion ( see Zakhidov v Boulevard Tenants Corp. , 96 AD3d 737, 739). To invoke the drastic remedy of preclusion, the court must determine that the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious ( see Moog v City of New York , 30 AD3d 490, 490).

Section 3126(2) permits a discovery sanction that precludes a witness's testimony without barring other evidence.

Darbeau v. 136 W. 3rd St., LLC · filed 2024-03-26(2)

Even if Supreme Court's order (Douglas, J.), entered July 27, 2020, precludes McIntosh's testimony due to his failure to submit to a deposition within 60 days ( see Papadopoulos , 192 AD3d at 430; Humble Monkey, LLC , 184 AD3d at 498), by its terms, the order only prevents McIntosh "from using certain witnesses," i.e., himself, as a discovery sanction and does not otherwise bar the submission of evidence (CPLR 3126[2]).

Section 3126(2) permits a court to preclude evidence for failure to comply with required disclosure, but preclusion requires a clear showing of willful and contumacious conduct.

Samaroo v. New York City Tr. Auth. · filed 2024-07-10(2)

Pursuant to CPLR 3126(2), a court may issue an order "prohibiting [a] disobedient party . . . from producing in evidence designated things" as a sanction, if that party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed." "Before a court invokes the drastic remedy of precluding evidence based on the failure to provide court-ordered discovery, there must be a clear showing that the failure was willful and contumacious" ( Llanos v Casale Constr. Servs., Inc. , 188 AD3d 864, 865). The willful or contumacious character of a party's conduct can be inferred from the party's repeated failure to respond to demands or to comply with discovery orders and the absence of a reasonable excuse for these failures ( see id. ; Smookler v Dicerbo , 166 AD3d 838, 839). The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter generally left to the discretion of the Supreme Court ( see Smookler v Dicerbo , 166 AD3d at 839). Here, under the totality of the circumstances, the defendants failed to make a clear showing that the plaintiff willfully and contumaciously refused to comply with discovery demands and orders ( see Ferjuste v 437 BMW, LLC , 219 AD3d 1308; Piper-Rader v Muslim , 99 AD3d 686).

Section 3126(2) permits a court to preclude evidence as a discovery sanction, but preclusion for failure to provide court-ordered discovery requires a clear showing that the failure was willful and contumacious.

Plenty v. New York City Tr. Auth. · filed 2024-07-10(2)

Pursuant to CPLR 3126(2), a court may issue an order "prohibiting [a] disobedient party . . . from producing in evidence designated things" as a sanction, if that party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed." "Before a court invokes the drastic remedy of precluding evidence based on the failure to provide court-ordered discovery, there must be a clear showing that the failure was willful and contumacious" ( Llanos v Casale Constr. Servs., Inc. , 188 AD3d 864, 865).

Section 3126(2) permits a court to preclude evidence when a party willfully fails to comply with discovery obligations.

Huseinovic v. Lee Wilson Mgt., LLC · filed 2024-08-14(2)

A court may issue an order "prohibiting [a] disobedient party . . . from producing in evidence . . . designated things" as a sanction against a party who "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126[2]). ... Accordingly, the Supreme Court, in effect, upon reargument, properly adhered to the prior determination granting that branch of the defendant's motion which was pursuant to CPLR 3126(2) to impose discovery sanctions against the plaintiff to the extent of precluding the plaintiff from using the photographs at issue as evidence at trial or in a dispositive motion ( see Rizzuti v Laucella , 57 AD3d at 757).

Section 3126 permits preclusion of evidence at trial when a party willfully fails to provide ordered discovery.

G.K. v. S.T. · filed 2024-07-08

The Court did grant Plaintiff's request for discovery sanctions: On this record, Plaintiff is entitled to an order, pursuant to CPLR 3126, directing Defendant to produce, by February 10, 2023, all discovery called for in the PC Order, the D&I Demand, and the March 10 Order. ... Accordingly, the conditional preclusion became absolute by reason of Defendant's willful and contumacious conduct in refusing to participate in discovery.

Section 3126(2) permits preclusion for failure to comply with a discovery order upon a further motion.

Brown v. 685 First Realty Co., LLC · filed 2024-10-23(2)

The January 2022 order provided for preclusion upon a further motion by R & J pursuant to CPLR 3126(2) for that relief, and R & J never moved for preclusion ( see CPLR 3126[2]; Sokolnik v Voronova , 221 AD3d 1036, 1038; Billingy v Blagrove , 84 AD3d 848, 849; Lee v Marino , 36 AD3d 454).

Section 3126 permits a court to preclude plaintiffs from testifying at trial for refusing to appear for depositions.

Ho v. Star Contrs., Inc. · filed 2025-01-13

Finally, as to that part of the motion concerning plaintiff's refusal to appear for depositions, the court precludes plaintiffs from testifying at trial.

Section 3126(3) permits a court to preclude expert testimony when a party willfully fails to disclose information that should have been disclosed.

Ortiz v. Family Baptist Church · filed 2025-01-29(3)

Therefore, pursuant to CPLR 3126(3), which provides that "[i]f any party ... willfully fails to disclose information which the court finds ought to have been disclosed ... the court may make such orders with regard to the failure or refusal as are just, among them ... an order prohibiting the disobedient party ... from using certain witnesses," here, the court finds that preclusion of plaintiffs expert' s testimony is warranted.

Section 3126 permits a court to preclude evidence as a sanction for spoliation, subject to the court's discretion.

Matter of Loreti v. Lorcress Enters., Inc. · filed 2025-08-27

Here, the Supreme Court providently exercised its discretion in granting that branch of the petitioner's motion which was pursuant to CPLR 3126 to preclude Maria Loreti and Lorcress from offering testimonial or documentary evidence concerning any matter in Lorcress's financial history that is, was, or might have been recorded in the QuickBooks files as a sanction for Maria Loreti's spoliation of evidence ( see Ortega v City of New York , 9 NY3d at 76).

Section 3126 permits a court to preclude evidence concerning records a party destroyed and failed to produce under a court order.

Matter of Loreti v. JJL Realty Corp. of N.Y. · filed 2025-08-27

Here, the Supreme Court providently exercised its discretion in granting that branch of the petitioner's motion which was pursuant to CPLR 3126 to preclude Maria Loreti and JJL Realty from offering testimonial or documentary evidence concerning any matter in JJL Realty's [*4]financial history that is, was, or might have been recorded in the QuickBooks files as a sanction for Maria Loreti's spoliation of evidence ( see Ortega v City of New York , 9 NY3d at 76).

Section 3126 permits a court to preclude testimony and documents concerning evidence a party has destroyed, even when the destruction makes the evidence’s contents uncertain.

Matter of Loreti v. 1466 E. Gun Hill Rd. Corp. · filed 2025-08-27

Here, the Supreme Court providently exercised its discretion in granting that branch of the petitioner's motion which was pursuant to CPLR 3126 to preclude Maria Loreti and Gun Hill from offering testimonial or documentary evidence concerning any matter in Gun Hill's financial history that is, was, or might have been recorded in the QuickBooks files as a sanction for Maria Loreti's spoliation of evidence ( see Ortega v City of New York , 9 NY3d at 76).

Section 3126 permits preclusion for failure to attend a court-ordered deposition without proof of willful or contumacious conduct; striking a pleading requires that proof.

Demera v. New York City Tr. Auth. · filed 2025-08-12

Notwithstanding the above, “ ‘[i]t is unnecessary to demonstrate willful and contumacious behavior in order to impose a sanction like a monetary sanction or preclusion, as opposed to a more drastic sanction such as the striking of a pleading’ ” (Guenzburger v Fernandez, 219 AD3d 1221, 1221 [1st Dept 2023]). Here, an order preclusion is warranted to prevent unfair surprise at trial and on a motion for summary judgment (see Corriel v Volkswagen of Am., Inc., 127 AD2d 729, 730 [2d Dept 1987]).

Section 3126(2) permits a court to preclude testimony as a remedy when a party violates a discovery order.

DeSimone v. Northport-East Northport Union Free Sch. Dist. · filed 2025-08-27(2)

The plaintiff, however, elected to proceed with the deposition in violation of the consolidated discovery order, over the defendant's objection, and after the plaintiff was notified about the assigned defense counsel's unavailability to attend. Under these circumstances, the court fashioned an appropriate remedy under CPLR 3103 and 3126 ( see Dojce v 1302 Realty Co., LLC , 199 AD3d at 650; Wright v Mount Vernon Hosp. , 88 AD3d 873, 874).

CPLR 3126 permits a court to preclude evidence for a discovery failure, but preclusion requires a clear showing that the failure was willful and contumacious.

Kacki v. 56th & Park (NY) Owner, LLC · filed 2025-10-22

Here, under the totality of the circumstances, the court providently exercised its discretion in denying that branch of the plaintiff's cross-motion which was pursuant to CPLR 3126 to preclude the defendants from relying upon certain evidence that was not disclosed during discovery in support of their motion and at trial.

CPLR 3126 gives the trial court discretion to limit preclusion to evidence that relies on requested documents a party failed to disclose.

Barua v. IM Peculiar, Inc. · filed 2025-11-26

However, under the circumstances, the Supreme Court providently exercised its discretion in only precluding the plaintiff from offering any evidence, affidavits, or testimony at trial that relied on documents that were requested by P & B but that the plaintiff failed to disclose ( see Huseinovic v Lee Wilson Mgt., LLC , 230 AD3d 577, 580).

CPLR 3126 permits preclusion of evidence for a discovery failure only upon a clear showing that the failure was willful and contumacious.

Dominguez v. New York City Hous. Auth. · filed 2026-06-17(2)

Thus, "[t]o invoke the drastic remedy of preclusion, the court must determine that the offending [*2] party's lack of cooperation with disclosure was willful, deliberate, and contumacious" ( Aha Sales, Inc. v Creative Bath Prods., Inc. , 110 AD3d 1019, 1019; see CPLR 3126[2]; Decius v 1362 Ocean, LLC , 222 AD3d 617, 618). Here, the plaintiff failed to make a clear showing of a willful and contumacious failure by the defendant to comply with discovery demands or to appear for a deposition.

Section 3126 preclusion may be denied when the party seeking it offers no argument in support.

Jordan v. BBP St Owner, LLC · filed 2024-06-05

As BPP and Quick set forth no arguments in support of their request to preclude Plaintiff from offering evidence, that portion of their motion is denied.

Section 3126 permits a court to exclude expert proof when a party fails to provide the expert’s report as directed.

Cho v. 401-403 57th Street Realty Corp. · filed 2005-12-06

Indeed, even if, as plaintiffs contend, the amount necessary for the option’s exercise was significantly lower than defendants claimed, as plaintiffs’ expert would have testified had his proof not been properly excluded in light of plaintiffs’ failure to provide defendants a copy of his report in accordance with the court’s direction (see CPLR 3126; ...), plaintiffs’ evidence would still have been insufficient to prove their financial ability to exercise the option.

Section 3126 preclusion is an improper discovery sanction where the moving party did not obtain permission to pursue discovery after trial began and the sanction excludes evidence already admitted.

Matter of Michael R. v. Amanda R. · filed 2019-09-10

In view of this, and the fact that the mother faced contempt penalties if she were unable to present evidence about her ability to pay, the Support Magistrate improvidently exercised his discretion in "precluding" the mother from presenting evidence and testimony that he had already admitted into evidence at trial more than a year previously.

CPLR 3126 does not treat a party as disobedient for failing to produce documents that do not exist.

Twining v. Far Eastern Manufacturing Co. · filed 1969-12-29

In our opinion, the scope of the conditional order related to the preclusion of such written documents. None existed. Defendant therefore was not a disobedient party within the meaning of CPLR 3126.

Section 3126 does not permit penalizing a party for a person's failure to appear for examination without a showing that the person is under the party's control.

Thomas v. Queens Transit Corp. · filed 1977-09-26

The papers submitted are insufficient to permit a determination that defendant Latonie is now within the control of respondent (see CPLR 3126; Ludden v Erie Lackawanna Ry. Co., 38 AD2d 783). Therefore, respondent cannot be penalized for his nonappearance.

Section 3126 permits a court to preclude a party from contesting claims if it fails to produce documents by a court-ordered deadline.

Goldfine v. Sichenzia · filed 2004-12-13

The Supreme Court providently exercised its discretion in directing the appellants to produce certain documents within 20 days of the date of the order appealed from, or be precluded from contesting the plaintiffs’ claims against them (see CPLR 3126; Pashayan v Corson, 306 AD2d 259 [2003]; Kingsley v Kantor, 265 AD2d 529 [1999]).

CPLR 3126 sanctions for failure to produce documents are discretionary; denial is proper when there is no evidence that the documents exist and are being improperly withheld.

O'Buckley v. County of Chemung · filed 2013-12-19

Inasmuch as there is no evidence that the documents that plaintiff seeks actually exist and that the County has access to them but has improperly withheld them, plaintiff has failed to show a clear abuse of discretion here (see Mary Imogene Bassett Hosp. v Cannon Design, Inc., 97 AD3d 1030, 1032 [2012]; Matter of Scaccia, 66 AD3d at 1249-1250; cf. Hameroff & Sons, LLC v Plank, LLC, 108 AD3d at 909; Rossi v Budget Rent A Car/Budget Car & Truck Rental, 49 AD3d 1088, 1089 [2008], lv denied 11 NY3d 709 [2008]).

A party facing a CPLR 3126 motion for failure to produce material must have an opportunity to attest by affidavit that the material is outside its possession, custody, or control.

Pollard v. 38-18 Crescent St., LLC · filed 2025-10-08

However, the court should have afforded the defendant an opportunity, in the alternative, to furnish an affidavit or affidavits attesting to the fact that the insurance inspection report with accompanying photographs is not in the defendant's possession, custody, or control or in the possession, custody, or control of anyone under the defendant's control ( see Eremina v Scparta , 120 AD3d 616, 618).

Section 3126(3) permits dismissal when a party fails without explanation to comply with a conditional discovery order.

Congleton v. United Health Services Hospitals · filed 2009-11-12(3)

Thus, Supreme Court was justified in dismissing her complaint, regardless of the adequacy of her unverified bill of particulars (see CPLR 3126 [3]).

CPLR 3126 (3) permits dismissal of counterclaims as a disclosure sanction, subject to review for abuse of discretion.

ARTS4ALL, LTD. v. Hancock · filed 2009-10-20(3)

The courts below did not abuse their discretion in dismissing defendant’s counterclaims pursuant to CPLR 3126 (3) {see Arts4All, Ltd. v Hancock, 12 NY3d 846 [2009]).

Section 3126 permits dismissal as a disclosure sanction only when the moving party demonstrates that dismissal is appropriate.

M & W Registry, Inc. v. Shah · filed 2009-04-14(3)

The appellant failed to demonstrate that dismissal of the amended complaint was appropriate pursuant to CPLR 3126 (cf. CPLR 3126 [3]; Sisca v City of Yonkers, N.Y., 24 AD3d 531, 532 [2005]; DeCintio v Ahmed, 276 AD2d 463, 464 [2000]), or CPLR 3216 (cf. CPLR 3216 [b] [3]; [e]).

CPLR 3126 (3) allows a court to dismiss a cause of action as a discovery sanction after considering all the facts and circumstances.

Arts4All, Ltd. v. Hancock · filed 2009-05-12(3)

The courts below applied the correct legal standards, properly considered all the facts and circumstances of the case, and did not abuse their discretion in dismissing plaintiffs’ remaining cause of action pursuant to CPLR 3126 (3) (see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]).

Section 3126 permits dismissal when repeated failure to comply with discovery orders supports an inference of willfulness.

Myers v. Community General Hospital · filed 2008-05-29

Under these circumstances, plaintiffs’ willfulness may be inferred and such conduct, in turn, warranted dismissal of the complaint as to defendant (see Martel v Chupka, 26 AD3d at 474-475; Hanlon v Rosenthal, 7 AD3d 758, 759 [2004]).

Section 3126(3) permits dismissal for discovery noncompliance when a party’s conduct is willful and contumacious.

Brown v. Astoria Federal Savings · filed 2008-05-27(3)

Although dismissing a complaint pursuant to CPLR 3126 (3) is a drastic remedy, it is warranted when a party’s conduct is shown to be willful and contumacious (see Suazo-Alvarez v Nordlaw, LLC, 48 AD3d 670 [2008]; McArthur v New York City Hous. Auth., 48 AD3d 431 [2008]; Sowerby v Camarda, 20 AD3d 411 [2005]).

Dismissal under CPLR 3126(3) requires a showing that the failure to comply with discovery was willful, contumacious, or in bad faith.

Accounts Receivable Solutions, Inc. v. Tompkins Trustco, Inc. · filed 2007-11-13(3)

The court providently exercised its discretion in denying that branch of the defendants’ cross motion which was to dismiss the complaint pursuant to CPLR 3126 because they did not demonstrate that the plaintiff willfully, contumaciously, or in bad faith failed to comply with the preliminary conference order or respond to their discovery demands (see CPLR 3126 [3]; Faulkner v City of New York, 32 AD3d 452 [2006]; Kuzmin v Visiting Nurse Serv. of N.Y, 22 AD3d 643, 643-644 [2005]; Cestaro v Chin, 20 AD3d 500, 501 [2005]; Diel v Rosenfeld, 12 AD3d 558, 559 [2004]).

CPLR 3126 permits dismissal of a complaint for continued failure to comply with discovery orders without a reasonable excuse.

Estate of Ort v. Ort · filed 2007-06-26

The Supreme Court providently exercised its discretion in granting the defendants’ separate motions pursuant to CPLR 3126 to dismiss the complaint. ... In the absence of a reasonable excuse for the plaintiffs failures to comply with duly-issued court orders, and its continued noncompliance, the appropriate sanction was to dismiss the complaint.

CPLR 3126 permits a court to impose preclusion for a discovery failure and deny a request for the more severe sanction of dismissal.

Dhirubhai Shah v. American Honda Motor Co. · filed 2007-06-19

In any event, the Supreme Court properly imposed the agreed-upon sanction of preclusion rather than the more extreme sanction of dismissal (see Siltan v City of New York, 300 AD2d 298 [2002]; Ferrantello v St. Charles Hosp. & Rehabilitation Ctr., 249 AD2d 263 [1998]; cf. Tirone v Staten Is. Univ. Hosp., 264 AD2d 415 [1999]).

CPLR 3126(3) permits dismissal for failure to provide discovery only when the failure is shown to be willful and contumacious.

Goldstein v. Kingsbrook Jewish Medical Center · filed 2007-04-24(3)

The Supreme Court improvidently exercised its discretion in denying that branch of Bonnie Fradella’s motion which was to amend the caption to substitute her as the administratrix of the plaintiffs estate in the place of the deceased plaintiff and to restore the action to active status on the court calendar, and in granting the defendants’ cross motions pursuant to CPLR 3126 (3) dismissing the complaint. ... Under the circumstances of this case, there was no clear showing that the failure to produce the demanded authorizations and other discovery was willful and contumacious.

Section 3126 permits dismissal for discovery failures, but dismissal is unwarranted when counsel’s illness caused the failure, disclosure is complete, and reinstatement would not prejudice the opposing party.

219 East 7th Street Housing Development Fund Corp. v. 324 East 8th Street Housing Development Fund Corp. · filed 2007-05-08

Since it is undisputed that plaintiff has now provided all required disclosure, and there has been no showing that reinstatement of the complaint will cause any cognizable prejudice to defendants, we decline to impose on plaintiff the drastic penalty of dismissal of the complaint as a sanction for the nonvolitional failures of its former attorney related to his mental illness (see Jiminez v St. John’s Riverside Hosp., 161 AD2d 497 [1990]).

Dismissal under Section 3126 requires evidence of willful, contumacious, or bad faith conduct.

Kesar v. Green Ridge Enterprises Corp. · filed 2006-06-13(b)(3)

The record does not evince willful, contumacious, or bad faith conduct by the appellant which would have warranted a dismissal pursuant to CPLR 3126 (b) (3) (see Franznick v Town of Huntington, 21 AD3d 875 [2005]; compare Royal Caterers, LLC v Marine Midland, 8 AD3d 549 [2004]; Alto v Gilman Mgt. Corp., 7 AD3d 650 [2004]).

Dismissal under CPLR 3126 for failure to provide discovery requires a clear showing that the failure was willful, contumacious, or in bad faith.

Dominique v. Flushing Hospital Medical Center · filed 2005-10-31

Wang did not clearly demonstrate that the plaintiffs failure to provide any discovery was willful, contumacious, or in bad faith (see CPLR 3126; Pascarelli v City of New York, 16 AD3d 472 [2005]; Ferrarese v USAA Cas. Ins. Co., 271 AD2d 401 [2000]).

CPLR 3126 permits dismissal of a complaint when a party’s failure to comply with discovery is willful and contumacious.

Sowerby v. Camarda · filed 2005-07-05

Although dismissing a complaint pursuant to CPLR 3126 is a drastic remedy, it is warranted when a party’s conduct is shown to be willful and contumacious (see Rowell v Joyce, 10 AD3d 601 [2004]; Beneficial Mtge. Corp. v Lawrence, 5 AD3d 339 [2004]; Frias v Fortini, 240 AD2d 467 [1997]).

CPLR 3126 permits dismissal of a complaint when plaintiffs willfully fail to comply with disclosure orders.

Melnitzky v. Housing Works Inc. · filed 2005-10-27

The complaint was properly dismissed upon a record showing that plaintiffs’ noncompliance with numerous disclosure orders was willful (CPLR 3126).

Dismissal under CPLR 3126 (3) is unduly harsh when noncompliance concerns a single discovery order, the information is not central to the opposing party’s trial position, and the party seeks to cure the failure.

Unanue v. Rennert · filed 2005-01-11(3)

Nevertheless, dismissal, even as to defendant Vigilante, which served the demand, was unduly harsh, since the discovery noncompliance related to a single order, the information sought did not go to the essence of Vigilante’s ability to present its position at trial, and plaintiff sought to cure the noncompliance.

CPLR 3126 permits dismissal of a complaint for willful, deliberate, and contumacious failure to comply with court-ordered discovery and pay monetary sanctions.

Royal Caterers, LLC v. Marine Midland · filed 2004-06-21

The plaintiffs’ repeated failure to comply with court-ordered discovery and their failure to timely pay monetary sanctions imposed was clearly willful, deliberate, and contumacious conduct.

CPLR 3126 permits dismissal of a complaint when a party repeatedly fails to comply with discovery orders and a discovery stipulation.

Raymond v. Rutherford · filed 2004-11-01

The Supreme Court providently exercised its discretion in ...granting that branch of the defendant’s motion which was pursuant to CPLR 3126 to dismiss the complaint insofar as asserted by the plaintiff Jewel James based on her repeated failure to comply with the court’s discovery orders and the parties’ stipulation (see Kihl v Pfeffer, 94 NY2d 118 [1999]; Wiltos v 1230 Park Owners, 1 AD3d 353 [2003]; Blake v Chawla, 299 AD2d 437, 438 [2002]).

CPLR 3126 (3) permits dismissal when a party willfully fails to comply with an order to provide a responsive bill of particulars.

Hanlon v. Rosenthal · filed 2004-05-24(3)

Such conduct on the part of the plaintiffs was willful and contumacious, warranting dismissal of the complaint pursuant to CPLR 3126 (3) insofar as asserted against the appellants (see Ranfort v Peak Tours, 250 AD2d 747 [1998]).

A conditional order of preclusion becomes absolute when a party fails to comply, and dismissal is appropriate if preclusion prevents that party from making a prima facie case.

Hoss Medical Services, P.C. v. Government Employees Insurance · filed 2004-06-17

The so-ordered stipulations functioned as conditional orders of preclusion, which became absolute upon the plaintiffs’ failure to comply. ... If preclusion will prevent plaintiffs from making a prima facie case, the motion to dismiss should be granted.

Repeated failure to comply with court-ordered discovery without a reasonable excuse can support dismissal under CPLR 3126.

Tutt v. City of Yonkers · filed 2004-10-12

Furthermore, the plaintiff failed to demonstrate a reasonable excuse for his repeated failures to comply with the court’s directives and the defendant’s discovery demands (see Rodriguez v New York Methodist Hosp., 3 AD3d 526 [2004]; Scoca v Bon Realty Corp., 284 AD2d 388 [2001]; Wynne v Wagner, 262 AD2d 556 [1999]; Kolajo v City of New York, 248 AD2d 512 [1998]; Roussodimou v Zafiriadis, 238 AD2d 568 [1997]).

CPLR 3126 permits dismissal of a complaint for a prolonged pattern of refusing to respond to discovery demands.

Penafiel v. Puretz · filed 2004-11-08

The plaintiffs’ failure to comply with the discovery demands and notices originally served in April 1998, and served again in the instant action in October 2003, has resulted in a cumulative history of noncompliance of nearly six years. In this unique context, the Supreme Court erred in denying the unopposed motion to dismiss the complaint (see Birch Hill Farm v Reed, 272 AD2d 282 [2000]).

Section 3126(3) requires willful and contumacious discovery noncompliance before a court may dismiss a complaint as a sanction.

Diel v. Rosenfeld · filed 2004-11-22(3)

The record does not support the defendant’s contention that the plaintiffs failure to be deposed was the result of willful and contumacious conduct. Accordingly, the Supreme Court improvidently exercised its discretion in granting the defendant’s motion pursuant to CPLR 3126 (3) to dismiss the complaint.

A court may decline to impose a CPLR 3126 sanction when disclosure conduct is not willful or contumacious noncompliance.

Umans v. Tomfar Transportation, Inc. · filed 2004-07-12

The Supreme Court providently exercised its discretion in determining that the defendants’ conduct during disclosure did ... not constitute willful or contumacious noncompliance warranting the imposition of a sanction pursuant to CPLR 3126 (see Mylonas v Town of Brookhaven, 305 AD2d 561 [2003]; Marro v St. Vincent’s Hosp. & Med. Ctr. of N.Y., 294 AD2d 341 [2002]).

Section 3126 permits dismissal of a complaint for willful failure to comply with discovery orders.

Gonzalez v. Paniccioli · filed 1991-06-24

We find that the Supreme Court did not improvidently exercise its discretion in dismissing the complaint due to the plaintiffs’ failure to disclose (see, CPLR 3126). ... The infant plaintiff’s three-year absence and consequent violations of several court orders was sufficient to find a willful failure to comply with discovery.

CPLR 3126 does not require dismissal for discovery delay when a lesser sanction is appropriate.

Pica v. Good Samaritan Hospital · filed 1990-12-24

We agree with the Supreme Court that the dismissal of the complaint pursuant to CPLR 3126 was not an appropriate sanction in this case.

CPLR 3126 does not require an affidavit of merit in opposition to a sanctions motion, but lack of a showing of merit may affect whether dismissal is warranted.

Recht v. Teuscher · filed 1991-10-21

While the plaintiff had no statutory obligation to furnish an affidavit of merit in connection with her opposition to the defendants’ motions pursuant to CPLR 3126, we may nevertheless consider the absence of any showing of merit as a factor affecting our decision whether a sanction less drastic than dismissal might be warranted (see, Wolfson v Nassau County Med. Center, 141 AD2d 815, 816). In view of the absence of a showing of merit and the plaintiff’s continued refusal to answer proper deposition questions, we conclude that dismissal was the appropriate remedy here.

CPLR 3126 permits dismissal when a party destroys records needed for disclosure after receiving notice of a claim.

Acolyte Electric Corp. v. City of New York · filed 1990-09-27

The court acted within its discretion in granting the city’s motion to dismiss the third, fifth and tenth causes of action pursuant to CPLR 3126 based on plaintiffs destruction, after service of the notice of claim, of its "riding sheets”, records maintained by plaintiffs repairmen, including handwritten entries of arrival and completion time for all repairs.

CPLR 3126 permits a court to give a plaintiff another chance to complete discovery instead of dismissing the action when the circumstances justify that choice.

Pascale v. Hoppenfeld · filed 1990-06-12

Order, Supreme Court, Bronx County (Barry Salman, J.), entered on or about June 19, 1989, which granted defendants’ cross motions to dismiss the complaint pursuant to CPLR 3126 and 3216 to the extent only of directing completion of discovery within 120 days of service of the court’s order with notice of entry, unanimously affirmed, without costs. Although this medical malpractice action has now been pending 10 years, in light of its arguable merit, as reflected in the 1980 report of the orthopedic surgeon, and plaintiff’s pro se status and alleged medical problems at the time of her failure to comply with defendants’ 90-day notices and demands for discovery, the IAS court’s decision to permit plaintiff one last chance to have this action considered on its merits cannot be said to have been an improvident exercise of its discretion.

CPLR 3126 permits dismissal when a plaintiff or the plaintiff’s agent willfully fails to disclose information required by a duly served notice.

Sloben v. Stam · filed 1990-01-29(3)

The court has discretion to dismiss a complaint upon a finding that the plaintiff or an agent of the plaintiff "wilfully fail[ed] to disclose information which the court finds ought to have been disclosed, pursuant to notice duly served” (CPLR 3126).

Section 3126(3) permits a court to dismiss a complaint when a party willfully disobeys a discovery order.

Brandi v. Chan · filed 1989-06-15(3)

CPLR 3126 provides that when a discovery order is willfully disobeyed, a court may, inter alia, strike the violating party’s pleadings (CPLR 3126 [3]).

CPLR 3126 allows a court to deny dismissal for discovery noncompliance when the delays appear nonwillful.

Whitler Contracting Corp. v. City of New York · filed 1990-05-24

In view of these seemingly nonwillful delays or obstructions of discovery, the trial court properly exercised its broad discretion in denying defendant’s motion to dismiss.

CPLR 3126 permits dismissal for failure to comply with a court order, but dismissal was unwarranted where the plaintiff was not in willful default.

Santoro v. Oppman · filed 1989-05-22

Further, we find that the Supreme Court correctly exercised its discretion by denying the defendant Village of Farming-dale’s motion, pursuant to CPLR 3126, to dismiss the complaint as against it. It cannot be said that the plaintiff was in willful default of the Supreme Court’s order dated March 31, 1987 (see, Parascandola v Kaplan, 108 AD2d 738; cf., Zletz v Wetanson, 67 NY2d 711).

Section 3126 permits dismissal of counterclaims after repeated refusals to comply with discovery orders when the refusal impairs the opposing party’s defense.

Lasidi, S. A. v. Financiera Avenida, S. A. · filed 1989-03-28

When compliance was not forthcoming, the court invoked the sanction provisions of CPLR 3126 and dismissed Avenida’s counterclaims. ... Finally, the trial court did not abuse its discretion in dismissing Avenida’s counterclaims after its repeated refusals to comply with the orders directing the Shaikh to submit to an examination before trial.

CPLR 3126 (3) permits dismissal when a plaintiff continues to refuse deposition questions after an order directing the examination to proceed, even if the plaintiff invokes the Fifth Amendment privilege.

Miller v. United Parcel Service, Inc. · filed 1988-10-17(3)

Upon the plaintiff’s continued refusal to answer the deposition questions, even after this court denied his motion for a stay of an order directing the examination to proceed, the Supreme Court properly granted the defendant’s motion to dismiss the complaint pursuant to CPLR 3126 (3) (see, e.g., Laverne v Incorporated Vil. of Laurel Hollow, supra; Levine v Bornstein, supra; cf., Zletz v Wetanson, 67 NY2d 711).

A court may deny a CPLR 3126 request to dismiss a complaint on the condition that the plaintiff comply with outstanding discovery demands.

Sadik v. Maimonides Hospital · filed 1987-06-01

Given the circumstances of the plaintiff’s default, which occurred on November 18, 1985 when the plaintiff’s counsel appeared late for the Special Term, Part 8-A Motion Calendar call, the prompt motion to vacate the default made by order to show cause on November 27, 1985, only nine days after the default, and the lack of prejudice to the appellants, we find that the determination of Special Term to vacate the plaintiff’s default and deny the appellants’ cross motion to dismiss the complaint, upon the condition that the plaintiff comply with outstanding discovery demands, was hot an abuse of discretion (see, Battaglia v Hofmeister, 100 AD2d 833).

CPLR 3126 (3) allows dismissal for discovery noncompliance, but a delay without a showing of willful and contumacious conduct or apparent prejudice does not warrant dismissal.

Master Collision, Inc. v. Continental Insurance · filed 1987-06-15(3)

The appellants failed to clearly demonstrate that the plaintiffs delay in complying with their discovery demands was willful and contumacious. Moreover, it does not appear that they have suffered any prejudice as a result of the delay. Consequently, the court properly exercised its discretion in denying the appellants’ motion to dismiss the complaint pursuant to CPLR 3126 (3) (see, Rubin v Pan Am. World Airways, 128 AD2d 765; Bassett v Bando Sangsa Co., 103 AD2d 728; Joseph v Roller Castle, 100 AD2d 839).

Section 3126 permits a monetary sanction for willful failure to disclose, and a court may choose it over preclusion when the late disclosure no longer prejudices the other party.

Mrs. London's Bake Shop, Ltd. v. City of Saratoga Springs · filed 1988-11-03

Order modified, on the facts, without costs, by denying defendants’ motion to preclude upon condition that plaintiff pay defendants the sum of $2,500 in costs within 30 days after service of a copy of the order to be entered upon this court’s decision with notice of entry; and, as so modified, affirmed.