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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.

 WAIVING 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;

With 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 [3]; 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).

 

The 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;

 

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.


CITED CASES

 

Annie M. Brown et al., Respondents,

v.

Veterans Transportation Company, Inc., et al., Appellants.

 

Supreme Court, Appellate Division, Second Department , New York

(February 25, 1991)

 

170 A.D.2d 638, 567 N.Y.S.2d 65

 

In 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.), entered May 26, 1989 , which, upon a ruling granting the plaintiffs' motion to strike their answer and directing a verdict of liability in favor of the plaintiffs, and upon a jury verdict as to damages, is in favor of the plaintiff Annie Mae Brown and against them in the principal sum of $104,216, and is in favor of the plaintiff William Brown and against them in the principal sum of $45,784. Ordered that the judgment is reversed, on the law, the answer is reinstated, and a new trial is granted, with costs to abide the event.

 

The 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 2303; Bobrowsky v Bozzuti, 98 AD2d 700, 702).


With 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 [3]; 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 (see, CPLR 3402; Bermudez v Laminates Unlimited, 134 AD2d 314, 315). 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).


In view of the foregoing, and under the circumstances of this case, we conclude that a  new trial of the action is warranted. We have considered the defendants' remaining contentions and find them to be without merit or, in view of our decision, academic.

Thompson, J. P., Brown, Sullivan and Miller, JJ., concur.


10 A.D.3d 601, 781 N.Y.S.2d 683, 2004 N.Y. Slip Op. 06488

 

Yvonne Simpson, Respondent

v

City of New York et al., Appellants.

 

Supreme Court, Appellate Division, Second Department , New York

September 7, 2004


In an action, inter alia, to recover damages for wrongful death, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Hart, J.), dated May 30, 2003 , as upon reargument, adhered to its prior determination in an order dated March 28, 2003 , granting the plaintiff's motion to strike their answer for failure to comply with discovery.


Ordered that the order is reversed insofar as appealed from, on the facts and as a matter of discretion, with costs, upon reargument, the motion to strike the answer is denied, and the answer is reinstated.


Actions should be resolved on their merits wherever possible (see Traina v Taglienti, 6 AD3d 524 [2004]; Bach v City of New York, 304 AD2d 686 [2003]), and the drastic remedy of striking a pleading should not be employed absent a clear showing that the failure to comply with discovery demands was willful, contumacious, or in bad faith (see Mendez v City of New York, 7 AD3d 766 [2004]; Traina v Taglienti, supra; Bach v City of New York, supra; Byrne v City of New York, 301 AD2d 489, 490 [2003]).

 

Here, 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 [2002];  Brown v Veterans Trans. Co., 170 AD2d 638, 639 [1991]). We further note that the defendants complied with a conditional order of preclusion dated October 16, 2002 , by disclosing the witness statements in their possession, providing affidavits attesting to their inability to locate additional statements, and producing a witness to be deposed. Although the plaintiff was dissatisfied with the witness produced, "[a] municipality, in the first instance, has the right to determine which of its officers or employees with knowledge of the facts may appear for an examination before trial" (Pomilio-Young v City of New York , 7 AD3d 600 [2004]), and the defendants voluntarily agreed to produce additional witnesses for further depositions. Accordingly, there was no showing of willful, contumacious, or bad faith conduct which warranted striking the defendants' answer. Smith, J.P., Krausman, Adams and Skelos, JJ., concur.

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