On August 21, 2023, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Musso v. OTR Media Group, Inc., 2023 NY Slip Op. 32896(U), striking an answer for failure to provide discovery, explaining:
It is well settled that the court may impose discovery sanctions 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. The drastic remedy of striking a pleading is proper where there is a clear showing that a party’s failure to comply with discovery is willful and contumacious. Willful and
contumacious conduct may be inferred from a party’s repeated failure to comply with court ordered discovery as well as insufficient explanations regarding such non-compliance. Therefore, where a party repeatedly failed to comply with court-ordered discovery over an extended period of time, and the court itself found that the defendants offered inadequate explanations for their failures to comply then striking the answer is proper.In this case there has clearly been an extended period of time Wherein the defendant has failed to provide any discovery or appear for a deposition. As noted, the defendant asserts he wishes to engage in discovery. Indeed, defendant’s counsel argues that OTR and Noe are eager to complete the discovery so it can move swiftly to summary judgment and that OTR and Noe are willing to do whatever is necessary in order to complete all discovery that are allegedly past due, within thirty (30) days from the date the Court decides this motion. However, there has been no explanation offered why discovery was not completed until this point, why numerous deficiency letters were unanswered and why numerous motions had to be filed, rendering the defendant’s readiness hollow. Thus, the only conclusion that can reasonably be drawn is that the defendant’s conduct in failing to conduct discovery was willful and contumacious. Consequently, the motion seeking to strike the answer is granted.
(Internal quotations and citations omitted).