WHEN SANCTIONS ARE IMPOSED IN DISCOVERY

According to Merriam-Webster: Definition of contumacious: stubbornly disobedient : REBELLIOUS

Ambroise v Palmana Realty Corp., 2021 NY Slip Op 05018, Decided on September 22, 2021. Appellate Division, Second Department:

"Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading, where a party "refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126[3]). "The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court's discretion" (Crupi v Rashid, 157 AD3d 858, 859). "Although public policy strongly favors that actions be resolved on the merits when possible, a court may resort to the drastic remedies of striking a pleading or precluding evidence upon a clear showing that a party's failure to comply with a disclosure order was the result of willful and contumacious conduct" (Nationstar Mtge., LLC v Jackson, 192 AD3d 813, 815). "A court can infer that a party is acting willfully and contumaciously through the party's repeated failure to adequately respond to discovery demands or to comply with discovery orders" (Cobo v Pennwalt Corp. Stokes Div., 185 AD3d 650, 652).

Here, the Supreme Court improvidently exercised its discretion in, sua sponte, directing dismissal of the complaint pursuant to CPLR 3126, since there was no showing that the plaintiff willfully and contumaciously failed to adequately respond to discovery demands or to comply with court orders for disclosure (see Ramirez v Reyes, 171 AD3d 1114, 1115-1116). On July 3, 2019, less than a month after the defendant moved, inter alia, to compel responses to certain discovery demands, the court directed the defendant to settle an order, among other things, striking the complaint. However, no prior order had been issued directing the plaintiff to comply with discovery demands. Moreover, shortly after the court directed the defendant to settle the order, the plaintiff produced documents on July 19, 2019, as requested, with regard to his financial ability to close, including "all the responsive documents in [the plaintiff's] custody and control" which he could locate. Under these circumstances, the record is insufficient to establish that the plaintiff engaged in willful and contumacious conduct warranting the drastic remedy of dismissal of the complaint.

In light of our determination, we need not reach the plaintiff's remaining contentions.

Accordingly, the Supreme Court erred by, sua sponte, directing dismissal of the complaint pursuant to CPLR 3126, and we remit the matter to the Supreme Court, Kings County, to set an appropriate schedule for the completion of discovery."