Key Takeaway
New York's First Department issued a conditional order of dismissal for discovery noncompliance, but the two-step process raises doctrinal concerns about court consistency.
Understanding Conditional Orders of Dismissal in New York Discovery Practice
When parties fail to comply with discovery obligations in New York litigation, courts have several enforcement mechanisms at their disposal. One such tool is the conditional order of dismissal, which gives a non-compliant party one final opportunity to cure their default before facing case dismissal. A recent First Department decision illustrates both the proper application of this remedy and some concerning trends in appellate court jurisprudence.
The conditional order serves as a middle ground between allowing continued discovery abuse and the harsh remedy of outright dismissal. Under CPLR 3126, courts can impose various sanctions for discovery violations, including striking pleadings or dismissing claims. However, the conditional order allows courts to avoid the difficult inquiry into whether a party’s noncompliance was willful — a standard that can be challenging to prove and often leads to inconsistent applications across different cases.
This approach becomes particularly relevant when dealing with discovery disputes that can delay summary judgment motions, as courts seek efficient ways to move cases forward while ensuring compliance with procedural requirements.
Jason Tenenbaum’s Analysis:
Mehler v Jones, 2020 NY Slip Op 02103 (1st Dept. 2020)
“The motion court providently exercised its discretion in issuing a conditional order of dismissal, in light of plaintiff’s history of noncompliance with court orders requiring her to appear for a further deposition (see CPLR 3126; Fish & Richardson, P.C. v Schindler, 75 AD3d 219, 220 ).
Plaintiff contends that her behavior was neither willful nor contumacious. However, by issuing a conditional order, the court “relieve of the unrewarding inquiry into whether resistance was willful” (Board of Mgrs. of the 129 Lafayette St. Condominium v 129 Lafayette St., LLC, 103 AD3d 511, 511 ).”
I find it hard to believe that the decision to impost a conditional order is a two step process. This Court lately has been all over the place doctrinally. There was a CPLR 2309 case that was off the charts stupid that I did not post because I did not want to encourage anyone to make those arguments. I am losing faith in this Court quickly.
Key Takeaway
The First Department’s approval of conditional dismissal orders as a way to bypass willfulness inquiries may streamline discovery enforcement, but raises questions about procedural consistency. This decision reflects broader concerns about doctrinal coherence in the court’s recent rulings, particularly regarding procedural timing issues and discovery sanctions.
