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This article is part of our ongoing discovery coverage, with 103 published articles analyzing discovery issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Discovery deadlines in New York litigation are not mere suggestions—they carry serious consequences when violated. The examination before trial (EBT) process is a critical component of litigation discovery, allowing parties to gather testimony under oath before trial. When parties fail to appear for scheduled depositions, particularly after court-ordered compliance conferences, judges have broad discretionary power under CPLR 3126 to impose sanctions.
These sanctions can range from monetary penalties to the ultimate sanction of striking pleadings or placing a party in default. The severity of the penalty often depends on whether the court finds the violation was willful and contumacious, rather than merely inadvertent. While late motions to strike pleadings and summary judgment proceedings may allow for some flexibility in the discovery process, deliberate disregard of court orders typically results in harsh consequences.
Jason Tenenbaum’s Analysis:
Bernal v Singh, 2010 NY Slip Op 03053 (2d Dept. 2010)
“It is settled that the nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the Supreme Court (see CPLR 3126; Joseph v Iannace, 6 AD3d 502, 503; Ordonez v Guerra, 295 AD2d 325, 326; Yona v Beth Israel Med. Ctr., 285 AD2d 460, 461). The record herein supports the Supreme Court’s determination that the defendants’ failure to appear for depositions on June 5, 2009, was willful and contumacious (see Beneficial Mortg. Corp. v Lawrence, 5 AD3d 339, 340; Rowell v Joyce, 10 AD3d 601). The attorneys for both sides had agreed upon that date at a compliance conference on June 1, 2009, just four days earlier, and the resulting compliance conference order had directed the depositions to proceed on that date starting at 10:00 A.M. in the courthouse.”
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I am not sure how many previous orders were violated, but the extreme penalty of putting a defendant in default under the circumstances as presented in this opinion seems quite drastic.
Key Takeaway
The Bernal v Singh decision illustrates that courts will impose severe sanctions, including striking answers and entering default judgments, when parties willfully violate discovery orders. The short timeframe between the compliance conference and the missed deposition—only four days—emphasizes that recent agreements provide no excuse for non-compliance.
Legal Update (February 2026): Since 2010, there have been amendments to discovery procedures and CPLR provisions, including updates to electronic discovery rules and potential modifications to sanction standards under CPLR 3126. Additionally, case law interpreting willful versus inadvertent discovery violations may have evolved, and procedural requirements for EBT scheduling and notice may have been refined. Practitioners should verify current CPLR provisions and recent appellate decisions regarding discovery sanctions before relying on the standards discussed in this post.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Discovery Practice in New York Courts
Discovery is the pre-trial process through which parties exchange information relevant to the dispute. In New York, discovery practice is governed by CPLR Article 31 and involves depositions, interrogatories, document demands, and physical examinations. Disputes over the scope of discovery, compliance with demands, and sanctions for noncompliance are frequent in both no-fault and personal injury cases. These articles analyze discovery rules, court decisions on discovery disputes, and strategies for effective discovery practice.
103 published articles in Discovery
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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