On May 25, 2023, the First Department issued a decision in Citizen Watch Co. of Am., Inc. v. Zapco 1500 Inv., L.P., 2023 NY Slip Op. 02823, holding that a conditional discovery sanction order was triggered by the mere failure to produce evidence, explaining:
The order striking the answer was entered after the court found that defendant failed to comply with the provisions of a conditional order striking the answer unless defendant complied with specified discovery demands within a specified time. The conditional order was issued following a prolonged period in which defendant provided partial but inadequate responses to outstanding discovery demands and orders, as well as a stipulation entered into between the parties. CPLR 3126 authorizes trial courts to craft self-executing orders that impose discovery sanctions on a party unless that party submits to the disclosure within a specified time. Conditional orders become absolute upon failure to fully comply therewith. Defendant’s arguments that its noncompliance was not willful or contumacious is irrelevant because, where a litigant fails to comply with a conditional order the court is not required to find that its failure to comply was willful. Defendant’s explanations for its failure to comply with the order fell short of showing a reasonable excuse for the failure to produce the requested items, including a proper Jackson affidavit, and it made no showing of a meritorious defense, and therefore was not relieved from the dictates of the conditional order. Furthermore, because the court was explicit in the interim order as to what defendant was required to produce, and defendant had over a year to produce the requested documents before the conditional order was issued, there is no reasonable excuse for its failure to comply.
(Internal quotations and citations omitted) (emphasis added).