Miss an EBT deadline – have your answer stricken and go directly to inquest

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.”

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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