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WAIVING OBJECTIONS TO DISCOVERY COMPLIANCE
A handy memo to have at hand. Comes up frequently when an adversary will attempt to preclude you from introducing evidence they demanded and you didn't produce. However, merely demanding something and not receiving it, absent a court order or self executing stipulation is not enough to obtain preclusion.
OBJECTIONS TO DISCOVERY COMPLIANCE
Having filed a certificate of readiness affirming that
all discovery in the instant action is complete, and absent any previous
orders to the contrary, plaintiff may not now be heard to argue that
defendant should be subjected to
preclusion sanctions based upon the defendantís purported
failure to respond to pretrial discovery demands.
This issue was directly and pointedly addressed by the
Appellate Division, in Annie M. Brown vs. Veterans Trasportation
Company Inc., 170 A.D. 2d 638, 567 N.Y.S.2d 65, (App. Div. 2nd
Dept. 1991), where the Court wrote;
respect to the conduct of the defendants, the proper remedies for failure
to comply with pretrial discovery orders or for making previously possible
disclosure impossible are found in CPLR 3126 which includes the
sanction of striking the defaulting party's pleadings (see,
CPLR 3126 ; see
also, Ferraro v Koncal Assocs., 97 AD2d 429). However, the
plaintiffs failed to move for sanctions under CPLR 3126 at the
appropriate time (i.e., prior to trial) and instead filed a note of issue
and certificate of readiness, expressly affirming that discovery had been
completed. Accordingly, the plaintiffs waived any claim regarding
noncompliance with pretrial disclosure and precalendar orders (see,
Siragusa v Teal's Express, 96 AD2d 749; Levy v Wexler, 16 AD2d 688).
Appellate Division restated this rule in Simpson
v. City of New York., 10
A.D.3d 601, 781 N.Y.S.2d 683,
(App. Div. 2nd Dept. 2004), holding;
plaintiff did not indicate that discovery of the documents at issue was
outstanding when she filed her note of issue and certificate of readiness.
Under these circumstances, the plaintiff waived any claim regarding
noncompliance with the document demand contained in her notice for
discovery and inspection.
M. Brown et al., Respondents,
Transportation Company, Inc., et al., Appellants.
Court, Appellate Division,
A.D.2d 638, 567 N.Y.S.2d 65
a negligence action to recover damages for personal injuries, etc., the
defendants Veterans Transportation Company, Inc., and Roosevelt Bus Lines
appeal from a judgment of the Supreme Court, Nassau County (Morrison, J.),
record reveals that during the liability phase of the bifurcated trial in
this case, the court struck the answer of the defendants and granted
judgment as a matter of law on the issue of liability in favor of the
plaintiffs. The matter then immediately
proceeded to a trial on the issue of damages. The court premised its
decision to strike the answer upon its findings that (1) the defendants'
liability carrier failed to comply with a "so-ordered" subpoena
issued during trial, (2) the defendants failed to comply with precalendar
discovery orders, and (3) the defendants might possibly have destroyed or
made unavailable certain relevant physical and documentary evidence. The
striking of the defendants' answer was improper under the circumstances
presented. The remedies available for disobedience of a judicial subpoena
are found in CPLR
2308. Given the fact that the insurance carrier is not a party
but rather a nonparty witness, the proper sanction under CPLR
2308 is one of civil contempt. The pleadings may be stricken
only if a party fails to comply with CPLR
2308. Even a finding of civil contempt against the insurance
carrier cannot be made on this record because the subpoena was not
properly tendered with the appropriate traveling expenses in advance of
the return date (see, CPLR
v Bozzuti, 98 AD2d 700, 702).
A.D.3d 601, 781 N.Y.S.2d 683, 2004 N.Y. Slip Op. 06488
of New York et al., Appellants.
Court, Appellate Division,
the Supreme Court's determination to strike the defendants' answer was
based primarily upon their failure to disclose certain documents which
were within the scope of the plaintiff's notice for discovery and
inspection. However, the defendants substantially complied with the
document demand, and the plaintiff never objected to the failure to
produce the additional documents
at issue. Moreover, the plaintiff's prior motions to strike the
defendants' answer were not predicated upon the failure to provide the
subject documents, and the plaintiff did not indicate that discovery of
the documents at issue was outstanding when she filed her note of issue
and certificate of readiness. Under these circumstances, the plaintiff
waived any claim regarding noncompliance with the document demand
contained in her notice for discovery and inspection (see
Rodriguez v Sau Wo Lau, 298 AD2d 376 ;
v Veterans Trans.
Co., 170 AD2d 638, 639 ).
We further note that the defendants complied with a conditional order of