Wade Clark Mulcahy LLP

In <a href="https://www.wcmlaw.com/wp-content/uploads/2022/11/Castillo-v.-Charles.pdf"><em>Castillo v. Charles</em></a><em> (2022 NY Slip Op 06103),</em> an action to recover damages for personal injuries, the Appellate Division Second Department, department modified the lower courts order striking the plaintiff’s pleadings, as it was “too drastic of a remedy”  (<em>see Turiano v. Schwaber</em>, 180 AD3d 950, 952; <em>see also Arpino v. F.J.F. &amp; Sons Elec. Co., Inc.</em>, 102 AD3d at 211).

Here, plaintiff violated court multiple court orders including those directing her to appear for a continued deposition. Plaintiff also failed to disclose photographs referenced in her first deposition, and failed to provide authorizations to obtain records from certain medical providers. The court agreed that the record supports an inference of willful and contumacious behavior, striking the pleading, in this instance, was too drastic of a remedy. The court modified the lower courts order,  granting defendant’s motion only to the extent of precluding plaintiff from using the undisclosed photographs at trial, directing plaintiff to provide medical authorizations demanded by defendants and directing plaintiff’s counsel to personally pay $3,000 as a sanction to defendant.

Sanctions are intended to reinforce the notion that all parties must “play by the rules”. This decision hands out a slap-on-the-wrist as a penalty for plaintiff, while ignoring the fact that failing to disclose evidence could be detrimental to opposing counsel’s ability to make or defend their case.

Thanks to Kara Nelson for her contribution to this article.  Should you have any questions, please contact <a href="mailto:haquino@wcmlaw.com">Heather Aquino</a>.