On December 4, 2024, the Second Department issued a decision in Patsiouras v. Koklanos, 2024 NY Slip Op. 06053, holding that failure to comply with a conditional discovery order justified striking a defendant’s answer and counterclaims, explaining:
In an order entered January 9, 2020, the Supreme Court granted that branch of the plaintiff’s motion which was pursuant to CPLR 3126 for discovery sanctions to the extent of directing the defendants to comply with certain discovery demands within 20 days of service of the order with notice of entry, and if the defendants failed to comply, then their answer would be stricken (hereinafter the conditional order). On January 10, 2020, the plaintiff served the conditional order with notice of entry on the defendants. After the deadline to respond to the discovery demands had expired, the plaintiff filed an affirmation asserting that the defendants failed to comply with the conditional order, and the defendants filed a response thereto. In an order entered October 20, 2020, the court struck the defendants’ amended answer, affirmative defenses, and counterclaims. The defendants appeal. We affirm.
CPLR 3126 empowers a court to craft a conditional order which imposes discovery sanctions, including the striking of a pleading, unless within a specified time the resisting party submits to the disclosure. Where a party fails to comply with the terms of a conditional order prior to the deadline imposed therein, the conditional order becomes absolute. The burden of establishing noncompliance rests with the party seeking preclusion. To be relieved from the adverse impact of a conditional order, a defaulting plaintiff must demonstrate a reasonable excuse for the failure to comply with the order and the existence of a potentially meritorious action.
Here, the plaintiff established that the defendants failed to comply with the conditional order by responding to the discovery demands within 20 days of service of the conditional order with notice of entry. In response, the defendants failed to demonstrate a reasonable excuse for their failure to comply with the conditional order. Accordingly, the Supreme Court properly struck the defendants’ amended answer, affirmative defenses, and counterclaims.
(Internal quotations and citations omitted).