Bad-Behaving Litigants Beware: Gamesmanship During Discovery Could Come at Great Cost

New York courts are trending towards a strict no-tolerance approach in disposing of cases for willful discovery violations. Under CPLR 3126(3), a party may seek to strike its opponent’s pleading for a willful failure to comply with discovery obligations. While this is a drastic remedy, litigants should consider whether to pursue it more aggressively. In a number of recent decisions, New York trial and appellate courts have taken a no-tolerance approach to bad behavior in discovery and have invoked CPLR 3126(3) to strike pleadings. Court are more and more often heeding the directive of the Court of Appeals that “[l]itigation cannot be conducted efficiently if deadlines are not taken seriously” and “disregard of deadlines should not and will not be tolerated.” Andrea v. Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C., 5 N.Y.3d 514, 521 (N.Y. 2005).

For instance, on March 10, 2021, the Second Department granted a motion to strike a defendant’s counterclaims, holding that the defendant’s failure, without excuse, to comply with discovery demands for over a year and to comply with the deadlines set forth in a compliance conference order constituted “willful and contumacious” conduct. Nationstar Mtge., LLC v. Jackson, 192 A.D.3d 813 (2d Dep’t 2021). On April 28, 2021, the Second Department affirmed dismissal of a petition in a probate proceeding based on the petitioner and his attorney’s “course of conduct that needlessly prolonged the litigation and frustrated the disclosure process.” Matter of Apostolidis, 193 A.D.3d 1039 (2d Dep’t 2021). And on May 26, 2021, the Second Department reversed a trial court order that precluded the defendant from introducing certain evidence at trial due to its willful failure to produce documents. The Second Department held that the sanction was not severe enough—the trial court should have found the defendant’s conduct “willful and contumacious,” stricken the answer, and dismissed the entire case. Henry v. Atlantis Rehab. & Residential Healthcare Facility, LLC, 194 A.D.3d 1021 (2d Dep’t 2021). The list of successful CPLR 3126(3) motions goes on.

These decisions should embolden New York litigants frustrated by dilatory or obstructionist discovery tactics to consider a CPLR 3126 motion. To make use of CPLR 3126(3), a moving party should rigorously document its efforts to seek disclosure from its opponent, as well as its opponent’s willful and repeated failure to disclose. The stymied party should make its record at every compliance conference, by apprising the court of the opposing party’s disregard for its discovery obligations and requesting that the court set firm deadlines. New York appellate courts have urged trial courts to take an active approach upon learning that a party has repeatedly failed to comply with discovery orders, and have imposed on trial courts “an affirmative obligation to take such additional steps as are necessary to ensure future compliance.” Figdor v. City of New York, 33 A.D.3d 560, 561 (1st Dep’t 2006)1.  While in the past, a misbehaving litigant was often given multiple chances (and sometimes still is), New York courts appear increasingly disinclined to tolerate such conduct. See Fish & Richardson, P.C. v. Schindler, 75 A.D.3d 219, 222 (1st Dep’t 2010) (stating that there is no authority “that a court must issue such a ‘last chance’ warning or order in all cases before exercising its discretion to strike a pleading”).

In sum, subversion of the discovery process can have dire consequences in New York. If your opponent has willfully and inexcusably disregarded your multiple attempts to seek discovery that you are rightfully owed, you have grounds to file a CPLR 3126(3) motion to strike their pleading. As the Court of Appeals recognized two decades ago in Kihl v. Pfeffer: “If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity. Indeed, the Legislature, recognizing the need for courts to be able to command compliance with their disclosure directives, has specifically provided that a ‘court may make such orders... as are just,’ including dismissal of the action.” 94 N.Y.2d 118, 123 (N.Y. 1999). Thus, given that courts seem increasingly willing to impose the severe sanctions that CPLR 3126 allows, consider whether seeking absolute relief under CPLR 3126 is a preferable option for curtailing your opponent’s bad discovery behavior. 

1 As the First Department also aptly stated in Figdor: “While discovery has trickled in with the passage of each compliance conference, the cavalier attitude of defendant, resulting as it has in substantial and gratuitous delay and expense, should not escape adverse consequence.” 33 A.D.3d at 561. This dynamic is all too familiar to the diligent litigant who is left dealing with an uncooperative opponent who seemingly does just enough to prevent a dispute from ripening. 

Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.


Nell Zora Peyser
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As the regulatory and business environments in which our clients operate grow increasingly complex, we identify and offer perspectives on significant legal developments affecting businesses, organizations, and individuals. Each post aims to address timely issues and trends by evaluating impactful decisions, sharing observations of key enforcement changes, or distilling best practices drawn from experience. InsightZS also features personal interest pieces about the impact of our legal work in our communities and about associate life at Zuckerman Spaeder.

Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.