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Second Department Explains the High Bar Required to Strike Answer

January 5, 2024

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In its recent decision in Lifrieri v. Gambale, the Appellate Division, Second Department, sent the strong message that motions to strike an answer, pursuant to CPLR § 3126, will only be granted in limited circumstances. Lifrieri, NY Slip Op 06521 (2nd Dept. 2023).


Plaintiff filed an action against her landlord, after a window she was opening in her apartment building, swung inward, hit her, and caused her to fall backwards and suffer serious injuries. Plaintiff appealed a Richmond County Supreme Court order that denied her motion to strike defendant’s answer for failure to comply with discovery demands and for spoliation of evidence. Alternatively, she moved for the imposition of sanctions against defendant for the alleged spoliation.


On appeal, the Second Department explained that generally, “The determination of whether to strike an answer pursuant to CPLR § 3126 is addressed to the sound discretion of the trial court.” Lifrieri, NY Slip Op 06521, citing Pinto v Tenenbaum, 105 A.D.3d 930, 931 (2nd Dept. 2013). However, the remedy should be employed sparingly. The Court, citing Pinto, explained that “absent a clear showing that the failure to comply with discovery demands is willful, contumacious, or bad faith conduct” an answer should not be stricken.


In the instant matter, Lifrieri’s main grievance concerned her landlord’s failure to produce a home inspection report from 2014. But in the Court’s view, the trial court “providently exercised its discretion in denying that branch of the plaintiff's motion which was to strike the defendant's answer on the ground that the defendant spoliated.”  Lifrieri, NY Slip Op 06521, at 1. Namely, defendant’s failure to furnish the report did not leave Lifrieri unable to prove her claim, and its omission by the defense was not the result of “willful, contumacious, or bad faith conduct.” Id.


The key takeaway for civil litigators in New York State is to pinpoint the legal standard and common law interpretation of the CPLR before filing spoliation motions. Although plaintiff’s counsel in Lifrieri was frustrated by the absence of the report, a motion to strike an answer under CPLR § 3126 is an extreme measure that is only warranted in extreme circumstances.

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