Disclosure penalties discussedOctober 4, 2014

Cason v Smith, 2014 NY Slip Op 06412 (4th Dept. 2014)

This is an interesting discovery case.  The first principle is that once the employee leaves the employ, a 3126 sanction is not proper.

The second principle involves getting blood from a stone.  Once the to be deposed party folds its tend and concedes the key point, the adverse party cannot get the answer stricken or the complaint dismissed when the to be deposed party skips deposition.


“We agree with defendants, however, that the court abused its discretion in striking the answer insofar as interposed by Werner. Initially, we note that there was no basis for the court to sanction Werner for failing to produce Smith inasmuch as Smith left Werner’s employ prior to commencement of the action, and plaintiff “proffered no evidence that [Werner] exercised control over [Smith] and thus was responsible for [Smith]’s failure to appear for his deposition””


With respect to Werner’s failure to comply with a prior order

to produce a corporate representative for deposition, it is well established that “[a]lthough the nature and degree of a sanction for a party’s failure to comply with discovery generally is a matter reserved to the sound discretion of the trial court, the drastic remedy of striking an answer is inappropriate absent a showing that the failure to comply is willful, contumacious, or in bad faith” (Green v Kingdom Garage Corp., 34 AD3d 1373, 1374; see Mosey v County of Erie, 117 AD3d 1381, 1384). “Once a moving party establishes that the failure to comply with a disclosure order was willful, contumacious or in bad faith, the burden shifts to the nonmoving party to offer a reasonable excuse” (WILJEFF, LLC v United Realty Mgt. Corp., 82 AD3d 1616, 1619). Here, plaintiff met that initial burden, “thereby shifting the burden to defendant[s] to offer a reasonable excuse” (Hill v Oberoi, 13 AD3d 1095, 1096). We agree with Werner, however, that it offered a reasonable excuse for its failure to comply with the prior order. Plaintiff sought to depose a Werner representative solely in connection with his cause of action involving negligent hiring, training, and supervision, and such discovery was no longer relevant after Werner conceded the facts necessary to establish liability as a matter of law based on respondeat superior”

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