On May 4, 2022, Justice Reed of the New York County Commercial Division issued a decision in Maple Drake Austell Owner, LLC v. D.F. Pray, Inc., 2022 NY Slip Op. 50346(U), denying a discovery motion for failure to follow the Commercial Division Rules’ discovery dispute procedures, explaining:
Defendant’s motion to strike a complaint is denied. Defendant argues that the court should strike plaintiff’s complaint because plaintiff has repeatedly attempted to delay and thwart defendant’s efforts to advance this litigation by failing to completely and timely respond to defendant’s discovery demands. Defendant argues that plaintiff’s failure to provide intercompany emails and progress reports — as well as plaintiff’s overall delay in producing other requested documents — constitutes willful and contumacious conduct.
In order to strike a pleading as a sanction for failure to respond fully to discovery pursuant to CPLR § 3126, there must be a showing that the nonresponding party’s failure to comply is willful, contumacious or in bad faith. Without an excusable default, a non-compliant party’s answer may be stricken and default judgment entered in favor of the demanding party.
Here, there is no demonstrated history of willful failure to comply with plaintiff’s discovery obligations, nor are there any prior discovery court orders that have been ignored by plaintiff. In fact, there has not even been a preliminary conference to date. Moreover, defendant’s motion fails to establish the pattern of non-compliance necessary to show a willful failure to obey its discovery obligations. Plaintiff has provided voluminous documents to defendant to date, and has consented to Zurich providing documents to defendant that plaintiff produced in connection with its surety claim. Plaintiff has also committed to producing additional documents on a rolling basis in advance of any preliminary conference herein.
Additionally, defendant has failed to comply with this court’s explicit rules. Specifically, and in relevant parts, Rule 14 of the New York Commercial Division states that:
Discovery disputes are preferred to be resolved through court conference as opposed to motion practice. Counsel must consult with one another in a good faith effort to resolve all disputes about disclosure. See Section 202.7. If counsel are unable to resolve any disclosure dispute in this fashion, counsel for the moving party shall submit a letter to the court not exceeding three single-spaced pages outlining the nature of the dispute and requesting a telephone conference.
New York courts have ruled that discovery motions should be denied if a party fails to adhere to the aforementioned rules.
Here, defendant has never submitted a letter to the court outlining any of the discovery disputes. In fact, defendant has not even requested a preliminary conference. Accordingly, defendant’s application to strike plaintiff’s complaint pursuant to CPLR § 3126 is denied both because defendant has failed to establish a willful and contumacious conduct and because of its own failure to follow court rules.
(Internal quotations and citations omitted) (emphasis added).