Discovery

On the CPLR front – 3126(3) motion granted when party deponent lies during deposition

By Jason Tenenbaum | April 16, 2011 | 8 min read

Key Takeaway

Appellate Term reverses Civil Court, grants CPLR 3126(3) motion to dismiss complaint when plaintiff perjured herself about medical history during EBT deposition.

Casimir v Ann Bendick Realty, 2011 NY Slip Op 50602(U)(App. Term 2d Dept. 2011)

How many times has the party testified that he has never been involved in a prior accident, only to be later discovered that this person has had a bullseye on his back for 10 years that says hit me? There is nothing more frustrating than an injured person who lies about his prior medical history at an EBT, and the footwork that is necessary to compel a further deposition based on the lies.

The Appellate Term, in a far reaching decision REVERSED the Civil Court’s order denying a CPLR 3126(3) motion and in substance said the following: “if you perjure yourself, your complaint is dismissed.” It is nice to see this type of a decision. Here is the holding:

“While the drastic remedy of striking a pleading for failure to comply with discovery demands is inappropriate absent a clear showing that the failure was willful and contumacious a motion to strike a party’s pleadings pursuant to CPLR 3126 may be granted because of a party’s submission of false information during the course of discovery. In our opinion, this is one such case, since the documentary evidence submitted by defendant Kone, Inc. clearly demonstrates that plaintiff falsely testified during her deposition regarding her medical history and prior personal injury lawsuits.”

All I can say is think twice before telling a fib under oath.

Legal Update (February 2026): Since this 2011 post, CPLR 3126 jurisprudence regarding sanctions for discovery misconduct may have evolved through subsequent appellate decisions and amendments to discovery practice rules. Practitioners should verify current case law standards for striking pleadings based on false deposition testimony and confirm any procedural updates to motion practice under CPLR 3126.

Filed under: Discovery EBT Issues

About the Author

Jason Tenenbaum

Jason Tenenbaum is a personal injury attorney serving Long Island, Nassau & Suffolk Counties, and New York City. Admitted to practice in NY, NJ, FL, TX, GA, MI, and Federal courts, Jason is one of the few attorneys who writes his own appeals and tries his own cases. Since 2002, he has authored over 2,353 articles on no-fault insurance law, personal injury, and employment law — a resource other attorneys rely on to stay current on New York appellate decisions.

Education

Syracuse University College of Law

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24+ Years

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2,353+ Published

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7 States + Federal

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Discussion

Comments (16)

Archived from the original blog discussion.

raymond zuppa Apr 16, 2011

I wholeheartedly agree with this one. I hope it is applied across the board. I doubt it.

slick Apr 17, 2011

Although it’s not common practice, Plaintiffs attorneys should insist upon the reports relating to prior insurance claims before they produce for a deposition. Then they never have to worry about a situation like this.

JT Author Apr 18, 2011

This is an awesome decision. I am so sick of Plaintiffs at the EBT saying “I do not remember the prior accident”, when they treated extensively and received a decent settlement. Enough is enough.

nycoolbreez Apr 18, 2011

this just goes to prove that while it may be cheaper to lie; once found out it will cost dearly. I am not the smartest person in the world and definately dont know too much abouit personal injury discovery but I am curious about how D proved this? the court’s decision does not state WHAT documentary evidence was used to prove the lie, nor does the court state how such a foundation was laid for the admission of this proof. I am presuming there was some type of party admission?

Larry Rogak Apr 19, 2011

Not only can a suit be dismissed when the plaintiff tells a lie; the plaintiff can lose by withholding important information. The Appellate Division, Second Department held in Brown v. Michelin Tire Corporation, 204 A.D.2d 255, 611 N.Y.S.2d 594 (1994), “A court may dismiss an action where a plaintiff wilfully fails to disclose information which the court finds ought to have been disclosed, even where, as here, the plaintiff violated no prior court order.”

Raymond Zuppa Apr 19, 2011

Official court docs such as Bills of Particular and even discovery responses are considered formal and informal judicial admissions. Verified docs are the best but the lack of a verification will often be excused absent the attorney saying he blew it: “this is not what happened.’ Remember these were submitted by the Plaintiff — so even a medical report when annexed to a discovery response carries the admission contained in said response. Such court documents are pretty much self authenticating. You can get them stamped by the clerk at the records storage facility. I’ve done this at trial.

nycoolbreez Apr 20, 2011

“documentary evidence submitted by defendant Kone, Inc. clearly demonstrates that plaintiff falsely testified during her deposition regarding her medical history and prior personal injury lawsuits.”

nycoolbreez Apr 20, 2011

LARRY ROGACK doesnt Brown v. Michelin Tire stand for the holding that a party’s attorney faces grave danger when they watch another party lie and that lie prevents a defendant from preparing a defense or interposing a third party claim which would relieve them of liability? rather than the wholesale “dismiss an action where a plaintiff wilfully fails to disclose information which the court finds ought to have been disclosed”

kurt lundgren Apr 20, 2011

Why is this news? Over the years I must have done thousands of defense depositions where the plaintiff out right lied about prior accidents. When confronted with the fact that there were prior accidents the witness suddenly remembers. And you are right Larry. Then one tries to get authorizations for prior treatment only to find out that the plaintiff cant recall his former doctors – and upon more searching one discovers that the the same doctors that treated the plaintiff for the prior accident are the current physicians. This happened to me this year! I do defense too!!!! Its fraud on the Court and intolerable.

Larry Rogak Apr 21, 2011

Had a BI suit a few years ago where P fell down stairs because a chunk was missing from the nose of a marble step in an apartment house lobby. She had a knee replacement afterwards. Testified at her EBT that she never had knee problems before. But her prior medical records made a reference to some other doctor for a referral. Got that doctor’s records and it noted that she was told 2 months before the accident that her knee was shot and had to be replaced. I made a motion to dismiss under CPLR 3126 for “fraudulent concealment”. While the motion was pending the case settled for peanuts. But in all fairness, I’ve seen plenty of people lie on both sides of the “v”.

Raymond Zuppa Apr 21, 2011

“Everyone lies and everyone dies.” Morrisey

slick Apr 22, 2011

Dont worry, Ray. There is a light that will never go out!

Raymond Zuppa Apr 24, 2011

J.T. I am sure you would not mind me plugging a buddy and a friend to the No Fault defense community. Here it is: the 2011 Supplement to Rogak’s New York No Fault is now on sale and available at Rogak’s No Fault store. Some 264 pages of game changing decisions. And they’re out there. I am getting mine and I urge everyone to get theirs. Raymond Zuppa

JT Author Apr 25, 2011

I am going to order a book for the office as well as PIP mugs for my staff. I am curious how many of those game changing decisions – good and bad – were mine. I can tell you that I will not have too many from 2011, but that is because of my changing jobs and the two year wait to have appeals heard from the date of the adverse order, at least in the Second Department.

Raymond Zuppa Apr 25, 2011

J.T. compile your game changing decisions and I will advertise them for you on the Pit once it gets back up and running. The Webmaster is still on his religious walkabout but when he comes back we’ll be up and running.

Sun Apr 29, 2011

MVAIC, fair warning. Since you will not change your bogus discovery practices, I will be using this case against you continually.

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On the CPLR front – 3126(3) motion granted when party deponent lies during deposition

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