bill of particulars and interrogatories new york

#Bill of particulars and interrogatories new york trial#

In that same vein, Justice Kaye, writing for a unanimous majority in Kihl v. City of New York, 101 A.D.2d 795, 476 N.Y.S.2d 323) was neither abusive nor improvident. The default can therefore be considered willful and no error as a matter of law was committed when the Supreme Court imposed the sanction of dismissal.įurthermore, we find that the refusal of the court to exercise its discretionary power to impose a lesser sanction ( see, e.g., Applied Elec. This circumstance neither explains nor excuses the unconscionable delay in prosecuting this action. The plaintiffs’ current attorneys allege absolutely no excuse for this delay and state only that they were not substituted for the plaintiffs’ former attorneys until after, or shortly before, the defendant made the motion pursuant to CPLR 3126. In the present case, the extensive nature of the plaintiffs’ delay in responding to the defendant’s interrogatories permits an inference that the delay was willful. Lendor Structures, 29 A.D.2d 978, 289 N.Y.S.2d 687 Siegel, Practice Commentaries, McKinney’s Cons. The sanction of dismissal may be warranted even where, as in the present case, the plaintiff committed no violation of a prior court order ( see, Goldner v. Despite the fact that the plaintiff’s failure to respond did not violate any prior court order, the Second Department affirmed the CPLR 3126 dismissal and denied a subsequent motion by Plaintiff to reargue and vacate:Ī court may dismiss an action if the plaintiff “willfully fails to disclose information which the court finds ought to have been disclosed” ( CPLR 3126).

Nassau County Medical Center, (( 141 A.D.2d 815, 530 N.Y.S.2d 27 (2 nd Dep’t 1988).)) after an extensive failure to respond to defendant’s first set of interrogatories, defendant moved pursuant to CPLR 3126.

Opposition to a CPLR 3126 motion is often premised upon a misunderstanding regarding disclosure obligations, arguing that violation of an order to disclose, or violation of a conditional order of preclusion, must serve as a predicate for a 3126 motion. To the contrary, the relevant and controlling authority explicitly confirms that striking a pleading is permissible even when no prior court order is violated. The CPLR 3126(3) motion to strike a pleading is premised upon establishing a willful failure to disclose obviously, a movant’s regular and documented efforts to coax compliance must found the motion.

#Bill of particulars and interrogatories new york trial#

In two opinions issued on the same day this spring, the First and Second Departments continued a trend of affirming trial court rulings striking pleadings pursuant to CPLR 3126 once a willful failure to disclose is documented. Although the result is severe, both the trial and appellate courts are universally refusing to perpetually provide “one more chance” to comply with unqualified obligations to disclose.