January 8, 2019 by Brian Gibbons Litigation, New York 0 comments
Eight (Years) is Enough — Plaintiff’s Delinquent Discovery Finally Prompts Dismissal (NY)As every litigator is well aware, particularly in New York, the wheels of justice tends to turn slowly. This concept was never more apparent than in the case of Harris v. Kay. This 2019 First Department decision has a 2006 index number. Plaintiff appealed from a 2017 order granting defendant’s motion to strike the complaint. The Appellate Division found the trial court did not abuse its discretion in striking the complaint given plaintiff’s repeated, willful and contumacious refusals to provide discovery and comply with court orders over EIGHT years. This decision goes to show the level of leniency courts grant plaintiffs before entertaining the sanction of dismissal. Plaintiff’s response to defendants’ first set of interrogatories were served SIX years after the initial demands were made and the response failed to show a good-faith effort to address the requests meaningfully. It is a point of great frustration for defendants when plaintiff’s initiate lawsuits and then fail to prosecute and it takes years of good faith letters and motion practice, only to get an inadequate response. While this decision gives plaintiffs significant leeway, it is heartening to know there are limits to a court’s generosity. Let’s hope more judges make the resolution to keep more stringent discovery schedules! The salient point for defendants is simple — when plaintiffs fail to adhere to discovery orders, document those failures by publishing letters to the plaintiff. The more failures documented, the more persuasive the eventual dismissal motion will be. Thanks to Mehreen Hayat for her contribution to this post. Please email Brian Gibbons with any questions.