On September 30, 2024, Justice Cohen of the New York County Commercial Division issued a decision in Five Star Elec. Corp. v. Trustees of Columbia Univ., 2024 NY Slip Op. 33528(U), striking a plaintiff’s complaint for failure to provide discovery, explaining:
Under CPLR 3126, if a party refuses to obey an order for disclosure, a court may order that party’s pleading stricken. While the striking of a pleading is an extraordinary penalty, it is properly invoked where the moving affidavit demonstrates conclusively that the default was clearly deliberate or contumacious. Indeed, a court may providently exercise its discretion to strike the pleadings when the parties have offered no excuse for their repeated noncompliance with the court’s disclosure orders, and their conduct throughout the course of the litigation has been dilatory, evasive, obstructive and ultimately contumacious. It is a court’s prerogative to control its calendar and expeditiously dispose of the volume of cases before it. Appellate courts have recognized that, under the individual assignment system, substantial deference should be accorded to the trial court’s considerable discretion to compel compliance with discovery orders, and, absent clear abuse, a penalty imposed in accordance with CPLR 3126 should not readily be disturbed.
Here, Defendants have established persuasively that Plaintiff has willfully failed to provide discovery as directed in the Court’s January 27, 2021 Decision and Order, February 26, 2021 Discovery Order, and the September 7, 2021 Discovery Order. Specifically, Plaintiff failed to abide by the discovery deadlines and failed, despite specific directives in said orders, and without good cause, to respond to Defendants’ discovery demands and to supplement its interrogatory responses to Columbia and LendLease’ s discovery demands and interrogatories, each dated June 8, 2020 and August 11, 2020.
The record reflects that Defendants followed up numerous times regarding the interrogatory responses, and Plaintiff kept kicking the can down the road and eventually stopped responding. The extreme duration of Plaintiff’s failure to timely provide discovery, representing approximately two-thirds of the six-year lifespan of this litigation, demonstrates that Plaintiff’s noncompliance was willful, contumacious and in bad faith.
Plaintiff argues that this motion should be denied because there is a strong public policy preference in having cases decided on the merits and not on procedural grounds. While generally true, CPLR § 3126 and New York case law equally allow courts to exercise their discretion and to strike a party’s pleadings when a party’s discovery rise to the level of being willful, contumacious, and in bad faith.
Here, Plaintiff has failed to provide a reasonable response as to why it did not meet the Court’s deadlines. Plaintiff’s opposition argues that the parties never agreed to the ESI search terms, and it needed the ESI search terms to adequately respond to Defendants’ Interrogatories. Plaintiff submits that any notices of extra work claims will not only be in the records of Five Star but will be in Defendants’ records as well and there are no notices of extra work claims which only Five Star would possess. However, Plaintiff fails to adequately explain why it could not search its own records to find the notices and respond to Defendants’ interrogatories, other than it was time consuming. Nor is there any indication in the email communications to support Plaintiff’s position that ESI was required for Plaintiff to properly respond to Defendants’ interrogatories. Rather, as noted, on March 3, 2022, Plaintiff stated that it had reviewed the documents and that they intended to serve answers to the interrogatories with what they had by the end of the following week. Furthermore, at no point after the Fall of 2021 did Plaintiff raise this issue with the Court.
Plaintiff belated attempt comply with its discovery obligations in connection with the instant motion by now providing a supplemental response to Lendlease’ s First Set of Interrogatories is unavailing. There remains no justification for Plaintiff’s three years of delay and non-compliance. Further, Plaintiff did not even attempt to provide a supplemental response to Defendant Columbia’s interrogatories.
And contrary to Plaintiff’s assertion, Defendants have been prejudiced by the delay. Almost six years have passed since this lawsuit was filed, and seven years since this construction project was substantially completed. As more time passes it will be increasingly difficult for Defendants to defend against Plaintiffs claims as relevant witnesses have moved on to different roles or companies, memories have faded, and evidence has now become stale. Even Plaintiffs counsel acknowledged at the June 4, 2024 conference that our client has gone through significant changes of leadership and institutional knowledge has been lost, so we have the owner of the company, basically, trying to figure out what’s what. It was incumbent on Plaintiff to abide by the Court’s Orders and provide the discovery responses in a timely and comprehensive manner years ago. Plaintiffs failure to do so in this instance is fatal to its lawsuit.
Accordingly, it is ORDERED that the motion of Defendants to strike the Plaintiffs pleading and dismiss this case is GRANTED . . . .
(Internal quotations and citations omitted).