WHEN SEEKING AN ORDER OF PRECLUSION - CPLR 3216 (3)

As noted in an earlier publication: "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. 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."

These issues were raised in Cannon v 111 Fulton St. Condominium, Inc., 2018 NY Slip Op 04523, Decided on June 20, 2018 Appellate Division, Second Department:

"When a litigant fails to comply with the terms of a conditional order of preclusion, the terms of that order become absolute (see Lee v Arellano, 18 AD3d 620, 621). However, the burden of establishing noncompliance rests with the party seeking preclusion (see Goodman, Rackower & Agiato v Lieberman, 260 AD2d 599, 600; see also Deer Park Assoc. v Town of Babylon, 121 AD3d 738, 740). Because the remedy of preclusion is the functional equivalent of striking a party's pleading (see Goodman, Rackower & Agiato v Lieberman, 260 AD2d at 600), it may not be granted where the party can demonstrate a justifiable excuse and a potentially meritorious cause of action or defense (see Vera v New York El. & Elec. Corp., 150 AD3d 927, 928).

Here, the so-ordered stipulation did not set a time, date, or place for the plaintiff's deposition, instead stating merely that the plaintiff's deposition was to be held "on or before" March 16, 2015, "at a time and location to be agreed upon." In light of this, the defendants' minimal assertion that the plaintiff failed to appear, which relied on the hearsay assertion of an unnamed employee of defense counsel, was insufficient to demonstrate that the plaintiff willfully and contumaciously violated the so-ordered stipulation (see Yong Soon Oh v Hua Jin, 124 AD3d 639, 641; Deer Park Assoc. v Town of Babylon, 121 AD3d at 740; Vaccaro v Weinstein, 117 AD3d 1033, 1034; Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923). Similarly, the defendants did not allege in [*3]their motion that the plaintiff had failed to provide the outstanding written discovery that was included in the so-ordered stipulation. Therefore, since the defendants failed to demonstrate that the plaintiff knew when and where to appear for her deposition, there was no evidence of ongoing willful or contumacious conduct (see PNC Bank, N.A. v Campbell, 142 AD3d 1148, 1149). Accordingly, we disagree with the Supreme Court's determination to grant that branch of the defendant's motion which was to preclude the plaintiff from offering evidence at trial."