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Failure To Provide Discovery Leads To Striking Of Answer

November 24, 2011

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Although it sometimes seems that cases in New York can go on forever, with no penalties for dilatory conduct, courts will, eventually, enforce sanctions against a party that fails to provide discovery.  In Solomons v. Chaudhry, (Supreme Court, New York County, 110637/10) the defendant failed to provide discovery requested by plaintiff.  A compliance conference led to an order requiring production of the requested discovery, and provided that “failure to comply with the Order absent a showing of good cause shall result in dismissal of the complaint in the case of the plaintiff; or a striking of the answer, affirmative defenses and counterclaims, or a preclusion of evidence at trial in the case of the defendants, upon written notice of motion, of such non-compliance.”
After defendants failed to provide the ordered discovery, plaintiff moved to strike and/or compel the discovery.  The Court granted the motion.  After defendants again failed to provide discovery, plaintiff made another motion.  In response, defendants’ attorney provided an affirmation when he stated that the discovery was provided, but did not attach copies of the discovery or an affidavit of service. 
The court found that the failure to provide discovery was willful, and defendants failed to provide an adequate explanation for the failure.  The court, therefore, stuck defendants’ answers, but did not hold the defendants or the attorney in contempt for failure to comply with a the court orders.
This case shows that, while it takes time, a court will enforce discovery orders, and the parties must eventually comply with discovery requests.
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