Conditional Order of preclusion substitutes for willfulnessJuly 20, 2020

Center Sheet Metal v Cannon Design, Inc., 2020 NY Slip Op 04010 (1st Dept. 2020)

“Plaintiffs violated the court’s third conditional order of preclusion by failing to produce a witness for Aspen’s scheduled deposition, and failed to demonstrate either a reasonable excuse for their failure to comply or a meritorious claim.”

Contrary to plaintiffs’ argument, the court was not required to find that their failure to comply was willful (Keller v Merchant Capital Portfolios, LLC, 103 AD3d 532, 533 [1st Dept 2013]).