As readers of this blog are aware, the most contentious battles during a lawsuit are fought during discovery. Among the various discovery battles is scheduling depositions. In many cases, parties tend to reschedule depositions, which typically drags out the length of a litigation. The worst decision a party can make is failing to appear for a deposition. As a recent decision from Manhattan Commercial Division Justice Margaret Chan shows, New York courts will dispose of a case (i.e., striking of a pleading) for a party’s repeated failure to appear for a scheduled deposition.
In O’Rourke v Hammerstein Ballroom, Defendants moved separately, pursuant to CPLR §§ 3124 and 3126, requesting several forms of discovery sanctions against Plaintiff, including (i) dismissal and/or striking of the complaint; (ii) precluding Plaintiff from offering testimony or evidence in support of his claims; and (iii) monetary sanctions, for Plaintiff’s repeated failure to appear at court-ordered depositions. Specifically, between November 19, 2021, to January 24, 2024, the Court held eight discovery conferences with the parties and scheduled Plaintiff’s deposition each time. However, Plaintiff failed to appear for each of his eight separate court-ordered depositions.
On or about May 1, 2024, the Court held a ninth discovery conference with the parties. During the conference, Plaintiff’s counsel advised the Court that certain “extrinsic issues” caused him and his firm to “continuously drop the ball.” As a result, the Court ordered the Plaintiff to appear for a deposition on or before June 28, 2024, and gave Defendants permission to file for sanctions should Plaintiff fail to appear.
Following the May 1, 2024, discovery conference, Plaintiff failed to appear for his deposition on two additional, separate occasions. As a result, on July 10, 2024, the parties appeared for a status conference, during which the Court advised Plaintiff’s counsel that Plaintiff had until the return of Defendants’ motion to appear for a deposition. Rather than appear, on August 1, 2024, Plaintiff filed his opposition to Defendants’ motion.
Analysis:
In its decision, the Court examined the standard for issuing discovery sanctions. Specifically, CPLR § 3126 (3) provides that if a party “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just,” including “an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.” In addition, the Court noted that “[t]he drastic sanction of striking pleadings is justified only when the moving party shows conclusively that the failure to disclose was willful, contumacious or in bad faith” (Roman v City of New York, 38 AD3d 442 [1st Dept 2007], [citations omitted]).
In applying the standard under CPLR § 3126 , the Court held that the appropriate sanction for Plaintiff’s repeated failure to appear for a deposition was to dismiss Plaintiff’s complaint. Specifically, the Court stated that:
[P]laintiff’s counsel’s story is so wildly unrealistic that [it] can only imply that plaintiff was never ready for deposition on June 28 or any date and was never set to be prepared. Plaintiff’s counsel’s actions and representations smack of gamesmanship, which this court does not condone. In view of plaintiff’s counsel’s lack compliance with the most recent order giving him one more opportunity to move this case forward, coupled with his longstanding non-compliance with nine orders equaling nine other opportunities to move this case forward, plaintiff’s counsel’s inaction shows the lack of seriousness in the prosecution of this case. The sanction befitting the lackadaisical handling of this case is dismissal of plaintiff’s complaint.
Takeaway:
The message from the O’Rourke decision, like dozens of other rulings, seems clear. The Commercial Division will enforce a strict, no-tolerance approach in disposing of cases for willful discovery violations. Against this background, a party’s repeated negligence, as in O’Rourke, will meet the criterion to strike a pleading under CPLR § 3126 (3). As such, counsel should heed the words of President Lincoln, who stated “[l]eave nothing for tomorrow which can be done today.”
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