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Jumped the gun on preclusionJune 18, 2012

Delta Diagnostic Radiology, P.C. v Travelers Prop. Cas. Co. of Am., 2012 NY Slip Op 51064(U)(App. Term 2d Dept. 2012)

(1) Preclusion premature

“The Civil Court granted [*2]the branch of defendant’s motion seeking to preclude plaintiff from presenting evidence at trial related to the discovery requested, finding that the responses provided by plaintiff to defendant’s demand for verified written interrogatories were given by an employee of plaintiff’s corporation, not by an owner, officer, or managing individual of the corporation, and, thus, that the responses were insufficient. In our opinion, the Civil Court improvidently exercised its discretion in granting the branch of defendant’s motion, pursuant to CPLR 3126, seeking to preclude plaintiff from offering evidence at trial related to the discovery requested (see Castor Petroleum, Ltd. v Petroterminal de Panama, S.A., 90 AD3d 424 [2011]; Allen v Calleja, 56 AD3d 497 [2008]), particularly in light of the fact that, at the time the motion was heard by the court, plaintiff had already responded to defendant’s discovery requests, which had first been served on plaintiff only six weeks before the motion was brought. The drastic remedy of preclusion is inappropriate absent a clear showing that a party’s failure to comply with discovery demands was willful or contumacious”

(2) An employee with knowledge can verify an interrogatory

“Moreover, with respect to the Civil Court’s determination to preclude plaintiff from presenting evidence at trial related to the discovery requested because a mere employee of plaintiff’s corporation had responded to the discovery requests, we note that it is not improper for an employee who has the requisite knowledge and data to respond on behalf of his or her corporation (see Necchi S.P.A. v Nelco Sewing Mach. Sales Corp., 23 AD2d 543 [1965]; Southbridge Finishing Co. v Golding, 2 AD2d 430 [1956]; Siegel, NY Prac § 345, at 573; § 361, at 613 [5th ed]).”

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