On January 10, 2024, the Second Department issued a decision in JPMorgan Chase Bank N.A. v. Nehorayoff, 2024 NY Slip Op. 00066, holding that the repeated failure to provide discovery warranted sanctions notwithstanding the defendants’ assertion that they were willing to provide discovery, explaining:
In support of their cross-motion, the defendants failed to establish that they had a potentially meritorious opposition to the plaintiff’s motion to strike the defendants’ amended answer. The determination of whether to strike a pleading or to preclude evidence for failure to comply with court-ordered disclosure lies within the sound discretion of the court. Although public policy strongly favors that actions be resolved on the merits when possible, a court may resort to the drastic remedies of striking a pleading or precluding evidence upon a clear showing that a party’s failure to comply with a disclosure order was the result of willful and contumacious conduct. The willful and contumacious character of a party’s conduct can be inferred from either the repeated failure to respond to demands or comply with discovery orders, without demonstrating a reasonable excuse for these failures, or the failure to comply with court-ordered discovery over an extended period of time.
Here, the defendants’ willful and contumacious conduct can be inferred from their repeated failures to comply with the plaintiff’s discovery demands, their failure to comply with the order directing them to comply with those discovery demands within 20 days, their failure to timely oppose either of the plaintiff’s motions to strike their amended answer, and their failure to offer any excuse for their noncompliance.
The defendants’ contentions that the plaintiff failed to comply with RPAPL 1304 and the notice of default provision in the mortgage agreement and that this action is time-barred are nonjurisdictional defenses, and thus, these contentions are precluded by their default.
(Internal quotations and citations omitted).